Office of Merit Systems Oversight and Effectiveness

Date: May 8, 2001
File Number: 003118
Matter of: [claimant]

OPM Contact: Jo-Ann Chabot

A federal agency requested guidance on distributing the unpaid compensation of a deceased employee (decedent). The decedent died from a gunshot wound inflicted by her son, one of the two beneficiaries that she designated on the Standard Form (SF) 1152 (Designation of Beneficiary Unpaid Compensation of Deceased Federal Employee). The agency wants to know whether it still may pay the decedents son his share of the compensation. For the reasons stated below, the decedents son may not receive any of her unpaid compensation. The agency also wants to know whether the remaining beneficiary (the decedents daughter) may receive the share of the unpaid compensation that otherwise would have been distributed to the decedents son. For the reasons stated below, the agency may pay that portion of the decedents unpaid compensation to her daughter.

On November 21, 1983, the decedent signed the SF 1152, designating her son and daughter as beneficiaries and specifying that each would receive one-half of her unpaid compensation. According to the newspaper account that the agency provided, the decedents son allegedly shot her, following an argument on June 23, 1998. The newspaper account reflects that he was arrested and charged with murder, use of a firearm to commit a felony, and unlawful discharge of a weapon. On July 5, 1998, the decedent died of the gunshot wound that her son had inflicted. Her husband and two children survived her. The Sentencing Order of the Court that considered the criminal charges against the decedents son shows that, on February 2, 1999, he was found guilty of second degree murder and, on June 4, 1999, he was sentenced to 25 years in prison.

It is against public policy to permit an individual to profit from his or her wrongful act. Sally Ann Morgan, B-193743 (Sept. 28, 1979). Therefore, a beneficiary who participates in killing the deceased employee may not receive payment for that employees unpaid compensation and allowances, unless the record clearly establishes that the beneficiary did not act with felonious or wrongful intent. Sally Ann Morgan, supra; Goller, Leveton & Stoll, B-175195 (April 26, 1972); 51 Comp. Gen. 483 (1972). The Sentencing Order in this case clearly establishes that the decedents son acted with felonious intent in inflicting the gunshot wound that resulted in the decedents death. Thus, he is disqualified from sharing in any payment for the decedents unpaid compensation and allowances.

Section 5582 of title 5, United States Code governs settlement of the accounts of deceased employees of the federal government, and specifies a statutory order of precedence for disposition of a deceased employees unpaid compensation. Section 5582 provides in part:

(b) In order to facilitate the settlement of the accounts of deceased employees, money due an employee at the time of his death shall be paid to the person or persons surviving at the date of death, in the following order of precedence, and the payment bars recovery by another person of amounts so paid:

First, to the beneficiary or beneficiaries designated by the employee in a writing received in the employing agency before his death.

Second, if there is no designated beneficiary, to the widow or widower of the employee.

(Emphasis added.)

The language of section 5582 shows that, in establishing this order of precedence, Congress intended to "facilitate the settlement of the accounts of deceased employees" and to favor, for the distribution of compensation and allowances due, the beneficiaries that employees have designated to receive their unpaid compensation. Indeed, section 5582 provides for payment to individuals in successive categories of precedence only when nobody qualifies for placement in any of the preceding categories. The corresponding OPM regulation, 5 CFR 178.204, tracks the statute.

Additionally, the SF 1152 specifies that:

I hereby direct unless otherwise indicated above, that, if more than one beneficiary is named, the share for any deceased beneficiary who may predecease me shall be distributed equally among the surviving beneficiaries, or entirely to the survivor.

In designating more than one beneficiary and signing the SF 1152, an employee acknowledges the possibility that the share of one or more beneficiaries might be distributed to the other beneficiary or beneficiaries. Moreover, the disqualification of the decedents son from taking his share of the unpaid compensation in this case places him in the same position, in effect, as that of a designated beneficiary who predeceased the employee.

Accordingly, all of the decedents unpaid compensation should be paid to the remaining beneficiary the decedents daughter.