(1) The child is living with the father or mother other than the mother or father claimant; or

(2) The mother or father claimant is mentally incompetent; or

(3) The child was removed from the mother or father claimant's custody and control by a court order; or

(4) The mother or father claimant has elinquished such claimant's right to custody and control of the child to some other person or agency; or

(5) The separation is for a period of more than 6 months, and the child is age 18 or older and is mentally competent.

11 FR 13336, Mar. 30, 1976]

§ 404.350

"One-half support" defined.

(a) Applicability. One of the requirements for entitlement to a husband's, widower's, or parent's insurance benefit under sections 202(c) (1) (C), 202(f) (1) (D), and 202(h) (1) (B) (i) of the Act, respectively, is that the person claiming such benefit was receiving at least onehalf support from the insured individual at a specified time. (For exceptions to this requirement in the case of husband's or widower's insurance benefits

see

§§ 404.316(c) and 404.331(b).) Under the Social Security Amendments of 1965 (Pub. L. 89-97), a requirement for entitlement to a wife's insurance benefit as a divorced wife, a widow's insurance benefit as a surviving divorced wife, or a mother's insurance benefit as a surviving divorced mother is that, at a specified time, she was receiving at least one-half support from the insured individual, or she was receiving substantial contributions from such individual (pursuant to a written agreement), or there was in effect a court order for substantial contributions to her support from such individual. Pub. L. 92-603 removed these support requirements for entitlement to benefits as a divorced wife, a surviving divorced wife, and a surviving divorced mother effective with monthly benefits payable after December 1972. Under section 202(g) (1) (F) of the Act, prior to the 1965 amendments, one of the requirements for entitlement to a mother's insurance benefit as a former wife divorced (now designated as a surviving divorced mother) was that, at a specified time, she was receiving from her deceased former husband (pursuant to agreement or court order) at least one-half of her support. One-half support may be required in some cases to establish de

pendency of a child on a stepfather, stepmother, adopting father, or adopting mother and (under the law in effect prior to the Social Security Amendments of 1967 (Pub. L. 90-248)) to establish dependency of a child on a natural or adopting mother.

(b) What constitutes "at least onehalf support." (1) Except as provided in subparagraph (2) of this paragraph, a person is receiving at least one-half of his support from the insured individual at a specified time if such individual, for a reasonable period (as defined in paragraph (e) of this section) before the specified time, made regular contributions, in cash or kind, to such person's support and the amount of such contributions equaled or exceeded one-half of such person's support during such period

(2) A legally adopted child. for the purposes of section 202(d) (9) (B)(1) of the Act, shall be considered to be receiving at least one-half of his support from the insured individual for the year before the applicable time specified in section 202(d) (9) (B) (1) if such individual made a contribution, in cash or kind, to such child's support in each of the 12 months preceding the applicable time and the total of such contributions over the entire 12-month period equaled or exceeded one-half of such child's support for the year.

(c) "Support" defined. The term "support" includes food, shelter, clothing, ordinary medical expenses, and other ordinary and customary items for maintenance of the person supported.

(d) "Contributions" defined. "Con.. tributions," as used in this section, means contributions actually provided by the contributor from his own property, or the use thereof, or by the use of his own credit. When a person receives. and uses for his support, income from his services or property and such income. under applicable State law, is community property of himself and his spouse, no part of such income is a "contribution" by the spouse to such person's support regardless of any legal interest the spouse may have therein. However, when a person receives, and uses for his support. incorne from the services or property of his spouse and, under applicable State law, such income is community property. all of such income is considered to be a contribution by such spouse to such person's support.

(e) “Reasonable period” defined. (1) Ordinarily, a period of 12 months (except where there is a change in the support situation in such period) ending with the specified time is a reasonable period for purposes of determining whether the one-half support requirement is met at the specified time.

(2) Where there is a change in the support situation during the 12-month period, the reasonable period (except where the provisions of subparagraph (3) of this paragraph apply) begins with the change, or if there is more than one change, with the last change, and ends with the specified time. A change in the support situation for purposes of this paragraph is one in which there is an increase or decrease of support from a source or sources, and the increase or decrease is expected to be continuing and permanent. However, temporary or periodic increases or decreases, or periodic shifts of support do not constitute a change in the support situation for purposes of this paragraph (e.g., the contributor is seasonally employed and contributes only when employed, or a parent stays a certain number of months with each of several children during a calendar year).

(3) Where untoward circumstances (such as illness or unemployment) forced the insured individual to stop contributing, or to reduce his contributions, the reasonable period is determined by excluding the period effected by such untoward circumstances provided:

(1) The insured individual contributed at least one-half such person's support for at least 3 months (either consecutive or intermittent) of the 12-month period ending with the specified time; and

(ii) No one else (including such person) assumed the burden of providing at least one-half of such person's support on a continuing and permanent basis after the insured stopped or reduced his contributions (the initial receipt, or increase, of public assistance or other relief is not considered such an assumption of support).

[29 FR 12295, Aug. 27, 1964, as amended at 33 FR 20037, Dec. 31, 1968; 40 FR 31777, July 29, 1975]

(g) (1) (F) (i) (II) of the Act, as in effect for months September 1965 through December 1972, the term "written agreement" means an agreement signed by the former husband providing for substantial contributions by him for the claimant's support. It must be in effect at the applicable time but it need not be legally enforceable. "Substantial contributions pursuant to a written agreement" means contributions (as defined in § 404.350 (d)) that are regular and sufficient to constitute a material factor in the cost of the claimant's support. Generally, the claimant must actually be receiving the contributions at the applicable time. However, if the former husband had been making such contributions toward the claimant's support, but, prior to the applicable time, was either forced to stop making such contributions, or to decrease the amount of his contributions because of circumstances beyond his control (such as illness or unemployment), it may be determined that he was making substantial contributions at the applicable time if the former husband would have continued the contributions if he could and his failure to do so did not last for more than 9 months (either consecutive or intermittent) of the 12-month period ending with the applicable time.

(b) Agreement for support prior to September 1965. For purposes of section 202(g) (1) (F) in effect prior to September 1965, the term "agreement" means a legally enforceable contract between the divorced wife and her former husband, made either before or after the divorce, by the terms of which he agreed to contribute to her support.

(c) Court order for substantial contributions after August 1965 and prior to January 1973. For purposes of sections 202(b) (1) (D), 202(e) (1) (D), and 202 (g) (1) (F) (i) (III) of the Act, as in effect for months September 1965 through December 1972, the term "court order for substantial contributions" means any court order, judgment, or decree of a court of competent jurisdiction which requires regular contributions that are a material factor in the cost of the claimant's support and which is in effect at the applicable time. If such contributions are required by a court order, this condition is met whether or not the contributions were actually made.

(d) Court order for support prior to September 1965. For purposes of section 202(g) (1) (F) in effect prior to Septem

ber 1965, the term "court order" means any order, judgment, or decree of a court of competent jurisdiction compelling the former husband of a divorced wife to contribute to the latter's support and which is in effect at the applicable time.

[33 F.R. 20038. Dec. 31. 1968; 34 FR. 322 Jan. 9, 1969, as amended at 40 FR 31777, July 29, 1975]

§ 404.352 Minimum monthly survivor's insurance benefit amount.

(a) General. When only one individual is entitled to a survivor's insurance benefit for any month, the amount of such monthly survivor's insurance benert, before any reduction under § 404.353, or section 202(q) of the Act, shall be not less than:

(1) $93.80 for months after May 1974; (2) $90.50 for months after February 1974 and before June 1974;

(3) $84.50 for months after August 1972 and before March 1974;

(4) $70.40 for months after December 1970 and before September 1972;

(5) $64 for months after December 1969 and before January 1971;

(6) $55 for months after January 1968 and before January 1970;

(7) $44 for months after December 1964 and before February 1968;

(8) $40 for months after July 1961 and before January 1965.

widow(er)'s

(b) Sole surviving monthly benefit. Effective January 1973, a widow or widower who is the sole survivor entitled to benefits will not receive less than $84.50 reduced for months of entitlement prior to age 62.

[40 FR 31778, July 29, 1975]

§ 404.353 Simultaneous entitlement to more than one type of benefit.

(a) Old-age insurance benefit and other benefit. An individual may for a month be simultaneously entitled to an old-age insurance benefit based on his earnings and to another monthly benefit based on the earnings of another individual if such other benefit, prior to any reduction under § 404.403 or section 202 (q) of the Act, is greater than the primary insurance amount which is the basis of such individual's old-age insurance benefit. The amount of the benefit, other than the old-age insurance benefit, however, shall be reduced in accordance with § 404.407.

(b) Disability irsurance benefit and other benefit-(1) Genera!. Except as

provided in subparagraph (2) of this paragraph, an individual may for a month be simultaneously entitled to a disability insurance benefit based on his earnings and to another monthly benefit based on another individual's earnings record if such other benefit, prior to any reduction under § 404.403 or section 202(q) of the Act, is greater than the disability insurance benefit. Such other benefit, however, shall be reduced as provided in § 404.407.

(2) Benefits for months before September 1965-(1) General. If, for any month prior to the month in which the Individual attained age 65, such individual was entitled to a widow's, widower's, or parent's insurance benefit or to a wife's or husband's insurance benefit reduced under section 202 (q) of the Act, such individual could not, for any month after the first month for which such individual was so entitled, become entitled to disability insurance benefits. This provision does not apply with respect to benefits for months after August 1965, on the basis of applications filed after June 1965. (See § 404.306(b).) However, if an individual is entitled to such widow's, widower's, or other benefit and becomes entitled for the same month to a disability insurance benefit, such widow's, widower's, or other benefit. after any reduction under section 202(q) or 203(a) of the Act, shall be reduced. but not below zero, by an amount equal to the disability insurance benefit (after reduction under sec. 202(q) of the Act).

(11) Rule applicable to period July 1962 through November 1964. Entitlement to a widow's, widower's, or parent's insurance benefit or to an old-age, wife's, or husband's insurance benefit which is reduced under section 202(q) of the Act. for any month in the period July 1962 through November 1964 (but without the application of sec. 202(1)(1) of the Act), does not preclude entitlement to disability insurance benefits if the individual:

(a) Was under a disability (as defined in sec. 223(c) of the Act, as in effect prior to the Social Security Amendments of 1965 (Pub. Law 89-97)) which began prior to the sixth month before the first month for which such benefit was payable and which continued through November 1964, and

(b) Filed an application for disability Insurance benefits. If an individual was entitled to an old-age insurance benefit for any month during the period July

1962 through November 1964 (but without the application of sec. 202(j) (1) of the Act), and the conditions in (a) and (b) of this subdivision are met, entitlement to disability insurance benefits will not be terminated by entitlement to such old-age insurance benefit unless and until the individual again becomes entitled to an old-age insurance benefit. if the individual is entitled to both a disability insurance benefit and an oldage insurance benefit under the provisions of this subdivision, he will be entitled only to the disability insurance benefit. Where an individual becomes entitled to a disability insurance benefit under the provisions of this subdivision, and then again becomes entitled to an old-age insurance benefit for months before age 65, only those months beginning with the first month of entitlement to the subsequent old-age insurance benefit and ending with the month prior to the month of attainment of age 65 will be used in computing the reduction under section 202(q) of the Act.

(c) Disability insurance benefit and old-age insurance benefit. (1) Under the law in effect prior to the Social Security Amendments of 1965 (Pub. Law 89-97), disability insurance benefits ended with the month preceding the first month for which the individual was entitled to an old-age insurance benefit. This provision does not apply with respect to applications for disability insurance benefits filled after June 1965 or other applications described in § 404.312a. (See § 404.307(b).) For rule applicable to benefits for July 1962 through November 1964, see subparagraph (b) (2) (ii) of this section.

(2) Under the law in effect prior to the Social Security Amendments of 1965 (Pub. Law 89-97), if for any month prior to the month in which an individual attained age 65, such individual was entitled to an old-age insurance benefit which was reduced under section 202(q) of the Act, such individual could not, for any month after the first month for which such individual was so entitled, become entitled to disability insurance benefits. This provision does not apply with respect to monthly benefits for months beginning September 1965, on the basis of applications filed after June 1965. (See § 404.306(b).) For special rule applicable to benefits for July 1962 through November 1964, see paragraph (b) (2) (ii) of this section.

(3) If an individual becomes entitled to both an old-age insurance benefit and a disability insurance benefit for a month as described in subparagraphs (1) and (2) of this paragraph, he shall be entitled only to the larger of such benefits, except that, if such individual so elects, he shall instead be entitled to only the smaller of such benefits for such month. The effect of this provision is that the individual may be technically entitled to both benefits but only the higher is payable unless he elects to receive the lower, in which case only the lower is payable.

(d) Child's insurance benefits. A child may, for any month, be entitled to a child's insurance benefit on more than one individual's earnings if all the conditions for entitlement described in § 404.320 are met with respect to each claim. If two or more children could upon application be entitled to child's insurance benefits based on the earnings of more than one individual, all of such children entitled to benefits based on the earnings of one individual will (without the necessity of filing application) be deemed entitled to child's insurance benefits (if otherwise eligible) based on all earnings records with respect to which at least one of such children has filed application. In any case in which a child's entitlement to more than one child's insurance benefit is established for a month, such child shall be entitled only to the child's insurance benefit for such month which is based on the earnings of the individual who has the highest primary insurance amount; except that, for months after December 1972, such child's insurance benefit shall be the highest benefit to which such child could be entitled under § 404.322 (without the application of § 404.403) or § 404.409 if entitlement to such benefit would not result in any other person receiving a lower benefit (after the application of § 404.403) than such other person would have received if such child were entitled based on the earnings of the individual with the highest primary insurance amount.

(e) Entitlement to more than one benefit where not all benefits are child's insurance benefits and no benefit is an old-age or disability insurance benefit. If an individual is entitled for any month to more than one monthly benefit payable under the provisions of this subpart. none of which is an old-age or disability Insurance benefit and all of which are not child's insurance benefits, only the

greater of the monthly benefits to which he would (but for the provisions of this paragraph) otherwise be entitled shall be payable for such month.

[29 FR. 12295, Aug. 27, 1964, as amended at 33 F.R. 14, Jan. 3, 1968; 83 FR. 2710, Feb. 8, 1968; 40 FR 31778, July 29, 1975]

§ 404.354 Status of individual entitled

to benefits prior to September 1950. Section 101(c) of the Social Security Act Amendments of 1950 (64 Stat. 488) provided that an individual who was entitled to monthly insurance benefits under title II of the Social Security Act as in effect prior to the effective date of the Social Security Act Amendments of 1950, and who would have been entitled to such benefits for September 1950 but for the enactment of the Social Security Act Amendments of 1950, is automatically entitled to the corresponding monthly benefits under the Act as amended as though such individual met the conditions of entitlement and became entitled to such benefits in September 1950.

[29 F.R. 12296, Aug. 27, 1964] § 404.355

general.

Lump-sum death payments:

A lump-sum death payment is payable to one or more of the persons described in §§ 404.356-404.362 based upon the earnings of a deceased individual if:

(a) The individual died after August 31, 1950 either fully or currently insured (see Subpart B of this part); and

(b) An application for such lump sum is filed within 2 years after the date of death of the insured individual or, in the case of a surviving widow or widower of the deceased, such widow or widower was entitled to wife's or husband's insurance benefits, as the case may be, on the basis of the deceased's earnings for the month preceding the month of death. See Subpart G of this part for provisions regarding the extension, under certain conditions, of the time for filing application for the lump-sum death payment. [29 F.R. 12296, Aug. 27, 1964]

§ 404.356 Lump-sum death payments; widow or widower.

A lump-sum death payment is payable to the widow or widower (as defined in § 404.1101) of a deceased individual if such widow or widower was "living in the same household" (as defined in § 404.

1112) with the deceased at the time of his death, and the conditions described in § 404.355 are met, except that no application for such lump sum is necessary where such widow or widower was entitled to wife's or husband's insurance benefits, as the case may be, on the basis of the earnings of the deceased individual for the month preceding the month of his death.

{29 F.R. 12296, Aug. 27, 1964]

§ 404.357 Lump-sum death payments; no eligible widow or widower.

The lump sum is payable to the person or persons described in 404.358 or § 404.360 if:

(a) The deceased individual is not survived by a widow or widower who meets the requirements in § 404.356 (without regard to whether such widow or widower has filed application for the lump-sum death payment); or

(b) The deceased individual was survived by a widow or widower who met all the requirements for entitlement to the lump-sum death payment (see § 404.356) but such widow or widower died before receiving payment. [29 F.R. 12296, Aug. 27, 1964]

§ 404.358 Lump-sum death payments; funeral homes.

If all or part of the burial expenses of the deceased insured individual which are incurred by, or through, a funeral home (or funeral homes) remain unpaid, the lump sum shall be paid to such funeral home (or funeral homes) to the extent such burial expenses remain unpaid, provided that:

(a) A person who has assumed responsibility (see § 404.359) for payment of all or part of such burial expenses files application (in accordance with § 404.355) requesting that the lump sum be paid to such funeral home (or funeral homes); or

(b) At least 90 days have elapsed from the date of death of the insured individual; and

(1) No one has assumed responsibility (see § 404.359) for the payment of such burial expenses prior to the expiration of such period; and

(2) An application for the lump-sum death payment is filed in accordance with 404.355(b) by a representative of such funeral home (or funeral homes). [29 F.R. 12296, Aug. 27, 1964]