20 CFR 404.325; 404.905(d), (e); 404.957
After the death of H-1, a fully insured worker, his widow, W, age 32, filed application on January 12, 1955, for child's insurance benefits for their son, age 6, living with her, and for mother's insurance benefits for herself. The benefits were awarded as claimed, beginning December 1954, the month in which H-1 died. In October 1956 W married H-2, in Mexico, and notified the Administration of her remarriage. The Administration sent W notice, dated October 26, 1956, that her entitlement to mother's insurance benefits ended with the benefit for September 1956 because of her remarriage. (Section 202(g)(1) of the Act provides in effect that entitlement to mother's insurance benefits shall end with the month before the month in which the widow-beneficiary remarries.) Payment of her benefits was discontinued in accordance with this notice; her son's entitlement to child's insurance benefits was not affected by her remarriage.
In 1960, W left H-2 upon learning that he had previously been married to a woman still living, and that this marriage had never been dissolved. However, she did not notify the Administration of these facts until March 8, 1962, when she filed application for re-entitlement to mother's insurance benefits on H-1's earnings record. She submitted evidence which established that her marriage to H-2 was void under applicable State law. (In this case, since her marriage to H-2 occurred outside the United States, applicable State law is that of the District of Columbia.) At all times since her marriage to H-2 she had in her care H-1's child, now age 13, who is still entitled to child's insurance benefits.
Under section 202(g) of the Act, the widow of a fully or currently insured worker may become entitled to mother's insurance benefits if she has in her care a child of the worker entitled to child's insurance benefits, and meets certain other requirements. One of these requirements is that she must not have remarried (with certain exceptions inapplicable here). Moreover, she must have filed an application for such benefits (with certain exceptions also inapplicable here). Under section 202(j)(1), a person filing application in a month may become entitled to benefits under section 202 for each of the 12 preceding months in which he would have been entitled to the benefits if he had filed application in such preceding month.
A marriage which is absolutely void under applicable State law does not constitute a remarriage which precludes or terminates entitlement under section 202(g) of the Act. The issues then presented are (1) whether the fact (now established) that W's marriage to H-2 was void under applicable State law permits a reopening of the prior administrative determination of termination, and hence permits payment of mother's benefits from the time of such termination, or (2) if that determination of termination cannot be reopened, whether re-entitlement is possible upon the new application for mother's benefits (filed March 8, 1962).
Section 404.957 of Regulations No. 4, prevents reopening of the prior determination of termination. Under that section, where (as in this case) more than 4 years have elapsed since the date of notification of an initial determination, such determination may be reopened only under limited conditions, e.g., where the initial determination was procured by fraud, where there is an adverse claimant, etc. None of the conditions which permit reopening after 4 years are present here.
However, the fact that the prior determination of termination may not now be reopened does not prevent re-entitlement on the basis of the 1962 application for mother's benefits, if the claimant is otherwise eligible. Consequently, it is held that on the basis of that application W is re-entitled to mother's insurance benefits beginning March 1961.
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