SECTIONS 202(e), 216(c) AND 216(h) (1) (A) (42 U.S.C. 402(e), 416(e) AND 416(h) (1) (A)—WIDOW'S INSURANCE BENEFITS-CONDITIONS OF ENTITLEMENT – TERMINATION OF COMMON LAW RELATIONSHIP

20 CFR 404.708, 404.1101 and 404.1104

SSR 77-32

The claimant and the deceased wage earner were ceremonially married in 1953 and were divorced in 1958. Both before 1953 and after 1958 they lived together for various periods. During the period between 1965 and 1971, their living together in Ohio was found to constitute a valid common law marriage. From 1971 until his death in 1975, the wage earner did not live with the claimant. Held, a common law marriage continues until terminated by death or divorce, and the claimant is the legal widow of the wage earner

The issue is whether after their divorce in April, 1958, the claimant and wage earner entered into a common law marriage and whether the claimant qualifies as the widow of the wage earner based upon such common law marriage although they were not living together at the time of the wage earner's death.

The claimant began living with the wage earner in 1939 in Tennessee, and continued living with him there until they moved to Ohio in 1941 where she lived with him until 1958. They were ceremonially married in October 1953 and were divorced in Ohio in April 1958. Claimant resumed living with the wage earner from August 1964 to June 1965 in Illinois, and from June 1965 to May 1971 in Ohio again. From 1965 to 1969 claimant and wage earner executed joint tax returns, charge accounts, and joint loan accounts. After 1971, wage earner did not live with claimant, but apparently resided elsewhere.

The first years of "living together" in Tennessee from July 1939 to January 1941 did not constitute a common law marriage since such status is not recognized in that state (Crawford vs. Crawford, 277 S.W. 2d 389 (Tenn. 1955) Andrew vs. Signal Auto Parts, Inc. 492 SW 2d 222 (Tenn. 1973)). As to their "living together" in Ohio from 1941 to October 16, 1953, the law of that state requires of a common law marriage that there be clear and convincing evidence of an agreement "per verba de praesenti" to be husband and wife, subsequent cohabitation and a holding out to the community of marital status. In re Estate of Hammonds, 315 N.E. 2d 843 (Ohio 1973). The evidence to sustain a common law marriage from 1941 to October 1953 simply does not meet that level and establishes at most a mere living together without a present intent to marry.

In October 1953, however, claimant and the wage earner were married, holding themselves out to all in a public ceremony that they were man and wife. This marriage ended in April 1958 when they were legally divorced. Claimant did not live with the wage earner from the date of divorce until August 1964; in fact, during that period, the wage earner was living with another woman far removed from claimant.

From August 1964 until May 1971 claimant and wage earner resumed living together, residing together in Ohio from June 1965 to May 1971. In that period, they held themselves out as husband and wife, cohabited, and based upon all the evidence during that period they satisfied

the requirements of a common law marriage under the law of Ohio. From 1971 until the wage earner's death on March 24, 1975, they were not living together. However, with the finding of a common law marriage between 1965 and 1971 under the law of Ohio, the question arises as to whether such relationship was terminated. Was it terminated by the mere fact of separation, or was either divorce or death required for finality?

Ohio law provides that a common law marriage is not ended by mere separation; such relationship is terminated solely by death or divorce (Brawley vs. Thomas, 81 NE 2d 719 (Ohio, 1947), Dibble vs. Dibble et al, 100 NE 2d 451 (Ohio, 1950)).

Therefore, it is held that after claimant's ceremonial marriage with wage earner was terminated by divorce on April 26, 1958, beginning in June 1965, claimant and wage earner lived in common law status in Ohio since they held themselves out as husband and wife, considered themselves as married, and cohabited until May 1971. While no longer living together after May 1971, their common law marital status continued, absent divorce, until the wage earner's death. Accordingly, as the legal widow of the wage earner, she is entitled to widow's insurance benefits.

(PPS-44)

SSR 80-6

TITLE II - BENEFIT RATES FOR WIDOWS AND WIDOWERS WHO REMARRY AFTER ATTAINING AGE 60

PURPOSE: To state new policy concerning the effect of remarriage on the benefit rate payable to the widows and widowers of social security workers. This change was made by the Social Security Amendments of 1977.

CITATIONS (AUTHORITY): Section 336, Public Law 95-216 (Social Security Amendments of 1977); Section 202(e) and 202(f) of the Social Security Act; Regulations No. 4, sections 404.335-404.338.

PERTINENT HISTORY: Prior to the 1977 amendments the law provided that if a widow or widower remarried after attaining age 60 (except for marriages to certain specified beneficiaries), the benefit for such widow or widower while the subsequent marriage existed was less than the benefit payable to a widow or widower who had not remarried. The remarried widow's or widower's benefit was equal to one-half of the primary insurance amount (PIA) of the deceased spouse, whereas an unremarried widow's or widower's benefit (before reduction for age) was equal to the deceased spouse's PIA.

Congress was concerned that this provision of the law was deterring elderly persons from remarrying lest they lose benefits. Thus, the 1977 amendments provide that, effective for months after December 1978, the benefit rate of an entitled widow or widower who has remarried

after attaining age 60 will be the same as if such widow or widower had not remarried.

POLICY STATEMENT: (1) For months after December 1978, the benefit rate of a widow or widower who remarries after attaining age 60 is no longer affected by reason of marriage. The benefit continues as if the marriage had not occurred. (2) For remarried widows and widowers entitled to benefits in December 1978 the amount of benefits is recomputed to pay the rate (beginning in January 1979) that would have been payable if the new provision had been in effect during the period of the subsequent marriage. (3) Where a remarried widow or widower and other beneficiaries are entitled to benefits in December 1978, the increase in the remarried widow's or widower's rate in January 1979 does not reduce the benefits of other entitled beneficiaries even though the family maximum is exceeded. The rates of other beneficiaries are not reduced to less than the amounts to which they were entitled in December 1978.

FURTHER INFORMATION: Final regulations covering these policies were published in the Federal Register on June 15, 1979, at 44 FR 34479. CROSS-REFERENCES: Claims Manual Sections 408 and 456.

MOTHER'S INSURANCE BENEFITS

SECTIONS 202(g) (1), 202(k) (2) and 203(a) (1) (42 U.S.C. 402(g) (1), 402(k) (2) and 403(a) (1))—MOTHER'S INSURANCE BENEFITS-REQUIREMENTS FOR ENTITLEMENT-EFFECT OF DUAL ENTITLEMENT OF CHILD

20 CFR 404.335(a) (2) and (6)

SSR 77-12

HELD, "surviving divorced mother" may qualify for mother's insurance benefits if her child is entitled to benefits on the earnings record of his natural father, the claimant's former husband, even though the child is simultaneously entitled to, and is actually being paid benefits based on the earnings of the child's stepfather.

A question has been raised concerning the proper interpretation of section 202(g) (1) (F) (ii) of the Social Security Act. Reference is made to the following set of facts: A "surviving divorced mother" is a claimant for mother's insurance benefits, beginning November 1973. She has in her care a child who from November 1973 to September 1974 was simultaneously entitled to benefits on the earnings records of his stepfather and his natural father. The deceased natural father was the divorced spouse of the claimant and is the worker on whose earnings

record she is filing her application. The child in question was first entitled to child's insurance benefits on the earnings of his stepfather in February 1970 and did not become entitled on his natural father's earnings until November 1973. Although the child was entitled to child's insurance benefits on two earnings records during the period in question, he was limited by section 202(k) (2) (A) of the Act to payment of only one benefit for such period.

Section 202(k) (2) (A) provides, in pertinent part:

"Any child who under the preceding provisions of this section is entitled for any month to child's insurance benefits on the wages and self-employment income of more than one insured individual shall, notwithstanding such provisions, be entitled to only one of such child's insurance benefits for such month."

The use of the word "entitled" in this has been interpreted to mean that a child may be entitled on the earnings record of more than one individual but may be actually paid on only one of such earnings records for a particular month.

In accordance with section 202(k) (2) (A), that benefit payment was based on the earnings of his stepfather since those earnings enabled him to receive what would generally be the larger benefit. However, during his period of simultaneous entitlement, the child has received the advantage of a combined family maximum whenever reductions prescribed by section 203(a) of the Act would be applicable to his benefit payments.

Section 203(a) (1) provides an exception in family maximum reductions for individuals who, but for the provisions of section 202(k) (2) (A), would be paid child's insurance benefits on the earnings records of more than one individual. Under such circumstances, the maximum amounts of benefits payable on the basis of the earnings records of all such individuals may be combined although the total may not be higher than a prescribed limit.

Thus, while the child's benefit amount is based on the earnings of his stepfather under section 202(k) (2) (A), reductions under section 203(a) have been based on a combined maximum which is the sum of the maximums applicable to the earnings records of both the stepfather and the natural father. In this limited respect, the earnings of the child's deceased natural father have affected the amount of his benefit payment. The specific issue raised is whether the increased amount payable to the child through the application of a combined family maximum may be considered to be "benefits... payable on the basis of... [the insured] individual's wages and self-employment income" for purposes of section 202(g) (1) (F) (ii). To resolve this issue it is concluded, for the reasons below, that the surviving divorced mother may qualify for benefits on the basis of her son's entitlement to benefits on the earnings record of her former spouse regardless of whether the son is actually being paid on that earnings record, pursuant to section 202(k) (2) (A), or whether a combined family maximum, determined in part on the basis of such spouse's "maximum," is applicable under section 203(a) (1).

Section 202(g) (1) (E) provides, in pertinent part, that in order to be entitled to mother's insurance benefits, it is enough that the claimant have in her care a child of the worker "entitled to a child's insurance benefit." Section 202(g) (1) (F) prescribes that the child in the care of a "surviving divorced mother" must be her "son, daughter, or legally adopted child" and the benefits to which that child is entitled must be "payable" on the basis of her divorced spouse's earnings.

While section 202(g) (1) (F) requires that the benefits of the child of the surviving divorced mother be "payable" on the basis of the earnings of the former spouse, "payable" in this context may be interpreted to mean "entitled to benefits" on the basis of such spouse's earnings record. The literal meaning of the word "payable" in this context is that benefits "may" or "can" be paid and not that they are actually being paid. This definition of "payable" corresponds to the meaning of the word "entitled" as the latter word is ordinarily used in the Social Security Act. Neither the word "payable" nor any other language in section 202(g) (1) (F) clearly evidences an intent by Congress to require the child of a surviving divorced mother to actually be paid benefits on the earnings of the former spouse under e.g. section 202(k) (2) (A).

An interpretation of "payable" which would entitle only those claimants whose children are actually being paid benefits on the basis of the claimant's deceased former spouse's earnings, would tend to weaken the protection afforded by section 202(k) (2) (A) for those simultaneously entitled children whose mothers are "surviving divorced mothers." Section 202(k) (2) (A) generally permits simultaneously entitled children to receive the most advantageous benefit amount of two or more possible amounts. If a restrictive interpretation of "payable" were applied, a child who could be entitled to benefits on two earnings records might have to limit his application for benefits to the earnings record which would provide him with a lower benefit amount solely to enable his mother to become entitled to mother's insurance benefits. Under the facts here, the mother could not become entitled to benefits unless the child withdrew the application for benefits on his stepfather's earnings record and limited his second application solely to his natural father's earnings record. Nothing in the legislative history of section 202(g) (1) suggests that Congress intended that result.

Accordingly, a "surviving divorced mother" may qualify for mother's benefits if her child is entitled to benefits on the earnings record of the claimant's former husband regardless of whether the child is actually being paid benefits based on that individual's earnings, under section 202(k) (2) (A).