Code of Federal Regulations: Containing a Codification of Documents of ...

(4) She becomes entitled to an oldage insurance benefit which is equal to or exceeds the amount of the mother's Insurance benefit; or

(5) No child of the deceased individual is entitled to a child's insurance beneAt; or

(6) In the case of a former wife divorced, no child or legally adopted child of hers is entitled to a child's insurance benefit based on the earnings record of the deceased individual; or

(7) If she is married to a person age 18 or over who is under a disability as defined in section 223(d) of the Act and who is entitled to a child's insurance benefit (see paragraph (e) of this section), her husband's entitlement to such benefit terminates for a reason other than his death; cr

(8) If she is married to a man entitled to disability insurance benefits (see paragraph (e) of this section), her husband's entitlement to such benefit terminates for a reason other than his death or entitlement to old-age insurance benefits; or

(9) In the case of a widow entitled to a mother's insurance benefit based on a purported marriage (see § 404.1101(c) (2)) to the deceased individual, another woman is certified for entitlement to mother's or widow's insurance benefits based on such deceased individual's earnings record and such other woman is the widow (or is deemed to be the widow) of the deceased individual under the provisions of section 216(h) (1) (A) of the Act.

(e) Effect of remarriage before September 1965. For purposes of paragraph (d) (2) of this section, a woman's entitlement to mother's insurance benefits is not terminated by her remarriage if the man she marries is entitled to old-age, disability, widower's, or parent's insurance benefits, or if he is age 18 or over and is under a disability (as defined in section 223 of the Act) and is entitled to child's insurance benefits. However, see subparagraphs (7) and (8) of paragraph (d) of this section for termination because of a subsequent occurrence.

(f) Applicability of provisions of this section. The provisions of paragraphs (a), (b), and (c) of this section apply with respect to mother's insurance benefits for months after August 1965 provided that in the case of an individual not entitled to mother's insurance benefits in August 1965, an application for

(2) He remarries (except as provided in paragraph (b) of this section); or

(3) He becomes entitled to an old-age insurance benefit which is equal to or exceeds the amount of the father's insurance benefit as determined in accordance with § 404.337; or

(4) He becomes entitled to a widower's insurance benefit; or

(5) No child of the deceased individual is entitled to a child's insurance benefit (see paragraph (c) of this section); or

(6) If he is married to a person age 18 or older who is under a disability (as defined in section 223 (d) of the Act) and who is entitled to child's insurance benefits (see paragraphs (b) and (c) of this section), his wife's entitlement to such benefits terminates for a reason other than her death; or

(7) If he is married to a person entitled to disability insurance benefits (see paragraph (b) of this section), his wife's entitlement to such benefits terminates for a reason other than her death or her entitlement to old-age insurance benefits; or

(8) In the case of a man entitled to father's insurance benefits based on a purported marriage (see § 404.1101(c) (2)) to the deceased individual, another man is certified for entitlement to widower's or father's insurance benefits based on such deceased individual's earnings record and such other man is the widower (or is deemed to be the wid

ower) of the deceased individual under the provisions of section 216(h) (1) (A) of the Act.

(b) Effect of remarriage. For purposes of paragraph (a) (2) of this section:

(1) A widower's entitlement to father's insurance benefits is not terminated by reason of his remarriage to a woman entitled to old-age, wife's, widow's mother's, parent's, or disability insurance benefits, or to a woman who has attained age 13 and is entitled to child's insurance benefits, and was under a disability (as defined in section 223 (d) of the Act) which began before such child attained the age of 22 or had been under such ? disability in the third month before the month in which such marriage occurred.

(2) If a widower marries a woman not entitled to any of the benefits enumerated in paragraph (b) (1) of this section, and consequently his entitlement to father's insurance benefits is terminated, he may become reentitled to such benefits upon termination of the later marriage for any reason, provided all other conditions of entitlement are satisfied.

(c) Child over 18 not disabled. For purposes of paragraph (a) (5) of this section, a child age 18 or over who is entitled to child's insurance benefits for any month but is not under a disability (as defined in section 223 (d) of the Act) shall be deemed not entitled to child's insurance benefits, unless he was under such a disability in the third month before such month.

[41 FR 13335, Mar. 30, 1976]

§ 404.337 Mother's or father's insurance benefits; rate of benefit.

The amount of the mother's or father's insurance benefit for any month is equal to 75 percent of the primary insurance amount for such month of the deceased individual upon whose earnings the mother's or father's insurance benefit is based. (See § 404.352 for minimum sole survivor's insurance benefit rate.) [41 FR 13335, Mar. 30, 1976]

§ 404.338 Parent's insurance benefits; conditions of entitlement.

A man or woman is entitled to parent's insurance benefits if such person:

(a) Is the parent (as defined in § 404.1110) of an individual who was fully insured (see §§ 404.108-404.113) at the time of death; and

(b) Has attained age 62; and

(c) Has not married since the insured Individual's death (see § 404.339 (b) relating to remarriage after entitlement); and

(d) Is not entitled to an old-age insurance benefit which equals or exceeds the amount of the parent's insurance benefit as determined in accordance with 404.340; and

(e) Has filed application (see Subpart G of this part) for parent's insurance benefits; and

(f) Was receiving at least one-half support (see § 404.350) from the deceased insured individual at a time specified in

404.341 (a) and submitted proof of such support within a 2-year period specified in § 404.341(b).

[34 FR. 12575, Aug. 1, 1969]

§ 404.339 Parent's insurance benefits; duration of entitlement.

(a) General. A parent is entitled to parent's insurance benefits beginning with the month all of the conditions of entitlement described in § 404.338 are met. The last month for which a parent is entitled to parent's insurance benefits is the month before the month in which any of the following events occurs:

(1) The parent dies; or

(2) The parent marries (except as provided in paragraph (b) of this section);

(3) The parent becomes entitled to an old-age insurance benefit which equals or exceeds the amount of the parent's insurance benefit as determined in accordance with § 404.340; or

(4) In the case of a woman entitled to parent's insurance benefits who is married to a man age 18 or over and entitled to a child's insurance benefit (based on disability), her husband's entitlement to such benefit terminates for a reason other than his death.

(b) Effect of remarriage on entitlement to benefits. A parent's entitlement to parent's insurance benefits is not terminated by marriage to an individual entitled to wife's, widow's, widower's, mother's, father's (for months after February 1975), or parent's insurance benefits, or to an individual who has attained age 18 and is entitled to child's insurance benefits, and was under a disability (as defined in section 223 (d) of the Act, and which, for months before January 1973, began before such child attained age 18) or had been under such

a disability in the third month before the month in which such marriage occurred. [34 FR 12575, Aug. 1, 1969, as amended at 41 FR 13335, Mar. 30, 1976]

§ 404.340

Parent's insurance benefits; rate of benefit.

(a) General. The amount of the parent's insurance benefit for each month 's an amount equal to:

(1) 822 percent of the deceased individual's primary insurance amount if only one parent is entitled to parent's insurance benefits subject to the provisions of § 404.352; or

(2) 75 percent of the deceased individual's primary insurance amount if more than one person is entitled to parent's insurance benefits on the same earnings record.

(b) Subsequent entitlement of another parent. In any case in which:

(1) One person files application and is entitled to a parent's insurance benefit for a month; and

(2) Another person becomes entitled to a parent's insurance benefit for such month on the same earnings record but based on an application filed after such month and after the month in which the person referred to in subparagraph (1) of this paragraph filed application, the amount of the parent's insurance benefit of the person referred to in subparagraph (1) of this paragraph equals 821⁄2 percent of the deceased individual's primary insurance amount and the amount of the parent's insurance benefit of the person referred to in subparagraph (2) of this paragraph for such month equals the difference between the benefit of the person referred to in subparagraph (1) of this paragraph (before the application of § 404.402(b)) and 150 percent of the primary insurance amount of the deceased individual.

[34 F.R. 12575, Aug. 1, 1969]

§ 404.341 Parent's insurance benefits; time at which support requirement must be met; period within which evidence must be filed.

(a) Time at which support requirement must be met. For entitlement to parent's insurance benefits, the support requirement must be met either:

(1) At the time of the insured individual's death; or

(2) If such individual had a period of disability established which did not end before the month in which such

individual died, at the beginning of such period of disability.

(b) Period within which evidence of support must be submitted. (1) If the support requirement is met at the time of death, as provided in paragraph (a)(1) of this section, evidence of support must be filed with the Administration within 2 years after the date of such death.

(2) If the support requirement is met at the beginning of the individual's period of disability (in accordance with paragraph (a) (2) of this section) proof of such support must be filed within 2 years after the month in which such individual filed application to establish such period of disability, or before September 1960, whichever is later.

(3) Notwithstanding the provisions of subparagraphs (1) and (2) of this paragraph:

(i) In any case in which there would not be entitlement to parent's insurance benefits except for enactment of the Social Security Amendments of 1960, and the time at which the support requirement was met occurred before September 1960, evidence of such support may be filed within the 2 years after September 1960; and

(ii) In any case in which there would not be entitlement to parent's insurance benefits except for the enactment of the Social Security Amendments of 1961, and the time at which the support requirement was met occurred before August 1, 1961, evidence of such support may be filed within the 2-year period beginning on August 1, 1961.

Evidence of support must be filed with the Administration within the appropriate 2-year period even though the parent may not be eligible for parent's insurance benefits until after the expiration of such period. See § 404.616 and § 404.617 for provisions regarding the deemed filing of evidence of support within the appropriate 2-year period, in cases where good cause exists for failure to file such evidence before the expiration of the time specified in subparagraphs (1), (2), or (3) of this paragraph. See also § 404.612 for provisions of the Soldiers' and Sailors' Civil Relief Act of 1940 extending, under certain conditions, the period for filing evidence of support.

[29 F.R. 12293, Aug. 27, 1964, as amended at 29 F.R. 15510, Nov. 19, 1964]

§ 404.342

Child in care of claimant.

(a) Child in care after February 1975. For purposes of §§ 404.313, 404.335, 404.335a, and Subpart E of this part, a child is in the care of a mother (whether a wife, widow, or surviving divorced mother) or father (widower only) claimant if such claimant exercises parental control and responsibility for the welfare and care of a child under age 18, or of a child age 18 or older who is mentally incompetent. If the child is age 18 or older and mentally competent, "child in care" means that the mother or father is performing personal services (as defined in § 404.344) for the child.

(b) Child in care before March 1975. The provisions of paragraph (a) of this section are applicable in determining if a child is in the care of a mother (whether a wife, widow, or surviving divorced mother).

[41 FR 13335, Mar. 30, 1976]

§ 404.343 Child in care; exercising parental control and responsibility.

(a) Child in care after February 1975. For purposes of § 404.342:

(1) Parental control and responsibility may be exercised solely by the claimant (mother or father) or jointly with the claimant's spouse. However, the exercise of parental control and responsibility exclusively by one parent and then by the other over successive periods of time does not constitute the joint exercise of parental control and responsibility.

(2) Parental control and responsibility may be exercised directly or, where the claimant (mother or father) and child are apart, it may be exercised indirectly. The fact that the parent claimant has not lost the legal right to the child's care and custody, and retains the right to exercise parental control and responsibility, does not constitute the exercise of such parental control and responsibility even if such claimant furnishes the child's food, clothing, and shelter or makes provisions therefor.

[41 FR 13335, Mar. 30, 1976]

§ 404.344 Child in care; performing personal services.

(a) Child in care after February 1975. For purposes of § 404.342, personal services mean services performed for a child other than any routine household services which ordinarily are performed for any adult member of a household. For example, nursing care, or feeding or dressing a child who is unable because of his disability to perform these functions satisfactorily for himself, would constitute personal services, as would the direction or supervision of the activities of a child who is unable to manage his own funds, or who is able to do so only with considerable help and guidance. Also, if the parent claimant's presence and attention is required because of the nature of the child's impairment, such claimant would be considered to be performing personal services for the child. Such services may be performed by the claimant (mother or father) alone, or jointly with the claimant's spouse or another person.

[41 FR 13335, Mar. 30, 1976]

§ 404.345 Child in care; mother ог father claimant and child living together.

Where the mother claimant (0* mother or father claimant for months after February 1975) and child regularly live together, the child is considered to be in the claimant's care if such claimant either is exercising parental control and responsibility by supervising the child's activities and participating in the important decisions about the child's physical and mental needs, or performing personal services, as the case may be. However, if the mother or father claimant and child are living together only temporarily, the child is not considered to be in the claimant's care during the period they are together, even if the claimant exercises parental control and responsibility, or performs personal services, as the case may be, during such period unless:

(a) The child is in such claimant's care while they are apart; or

(b) Such claimant and child live together for a period of at least 30 consec

utive days, and the child is not on furlough while in the armed forces. [41 FR 13336, Mar. 30, 1976]

§ 404.346 Child in care; mother or father claimant and child not living together; general.

Where the claimant and child are not living together, a child is not considered I to be in such claimant's care except under the conditions described in §§ 404.347 and 404.348.

[41 FR 13336, Mar. 30, 1976]

§ 404.347

Child in care; claimant (mother or father) and child not living together; separation not in excess of 6 months.

Except as provided in § 404.349, where the separation is expected to end within 6 months from the date it began, a child is considered to be in the care of a claimant only if the child customarily lives with such claimant and is in the claimant's care when they so live together (see § 404.345). If the separation continues beyond the 6-month period, the provisions of § 404.348 are applicable in determining whether the child is in the care of a mother or father claimant. [41 FR 13336, Mar. 30, 1976] § 404.348

Child in care; claimant (mother or father) and child not living together; separation expected to be indefinite or to exceed 6 months. Where the claimant and child are not living together and the separation will be for an indefinite period, or is not expected to end within 6 months, such claimant is exercising parental control and responsibility for the welfare of the child only under the conditions described in paragraphs (a), (b), (c), and (d) of this section. If the child resumes living with the claimant before the end of 6 months, the provisions of § 404.347 are applicable in determining whether the child is in the care of such claimant. Special situations include:

(a) Child away at school. Where the claimant and a mentally competent child are separated because the child is away at school, such claimant is exercising parental care and responsibility during such separation if:

(1) The child is under 18 years of age and spends an annual vacation of at least 30 consecutive days with the claimant, unless it is not feasible for the child to return to the claimant, or to remain with

90-067 0-77-- -7

the claimant for that length of time, during vacations; and

(2) The claimant supervises the child's activities and participates in the important decisions about the child's physical and mental needs; and

(3) Where the child's mother and father are separated, the school authorities look to the claimant when they have a question concerning the child's welfare and care, and the child normally returns to such claimant during vacations.

(b) Claimant and child not living together because of the claimant's employment. Where the claimant and a mentally competent child under 18 years of age are separated because of such claimant's employment, the claimant is exercising parental control and responsibility if such claimant supervises the child's activities, participates in the important decisions about the child's physical and mental needs, and makes regular and substantial contributions towards the child's support.

(c) Claimant and child not living together because of physical illness or disability. Where the claimant and a mentally competent child under 18 years of age are separated because of the physical disability of either claimant or child, such claimant is exercising parental control and responsibility if the claimant supervises the child's activities and participates in the important decisions about the child's physical and mental needs.

(d) Claimant and child not living together; child mentally incompetent. Where a claimant and child are not living together (regardless of reason) and the child is mentally incompetent, such claimant is exercising parental control and responsibility if the claimant supervises the activities of the child, participates in the important decisions about the child's physical and mental needs, and measurably controls the child's upbringing, and development.

[41 FR 13336, Mar. 30, 1976]

§ 404.349 Child in care; when a child is not in the care of a mother or father claimant.

Notwithstanding the provisions in §§ 404.342-404.348, a child is not in the care of a claimant, for purposes of this subpart or Subpart E of this part, if: (a) The child is in the armed forces;

(b) The claimant and the child are not living together and either:

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