SSR 79-24: SECTION 202(i) (42 U.S.C. 402(i)) LUMP-SUM DEATH PAYMENT -- LIVING IN THE SAME HOUSEHOLD
20 CFR 404.1112
- The claimant, the wage earner's applied for the lump-sum death payment, stating that she and the wage earner lived together in Connecticut until he went to New York to work. He was killed 3 months after moving the New York. The wage earner's brother, who paid the burial expenses, maintained the claimant and the wage earner were not living together prior to his death and that the lump-sum death payment should be made to him. Held, the claimant and the wage earner were "living in the same household" at the time of his death as his absence was only a temporary absence, less than 6 months, due to employment reasons.
The general issue is whether the claimant is entitled to the lump-sum death payment based on the earning record of her husband, the wage earner. The specific issue is whether the claimant was living in the same household with her husband at the time of his death.
The claimant filed an application for the lump-sum death payment based on the earnings record of the wage earner, who died on December 2, 1972, in New York as a result of gunshot wounds. He had moved to New York in September or October 1972 for employment purposes. He lived with his sister in New York for about 2 months and had just leased his own apartment the day before he was killed. The claimant was living with her mother in Connecticut at the time of her husband's death.
The claimant and her husband were married in Connecticut in 1963. They began living with the claimant's mother at her home in 1966. They paid $75 per month toward rental of the house, and except for temporary absences when her husband was incarcerated, they continued to live there until he went to New York in 1972 for employment purposes. He was last incarcerated in 1971 for approximately 1 month. The claimant and her husband always resumed living together after his release from prison. While residing in New York prior to his death, the wage earner returned to Connecticut several times to visit his wife.
In support of the claimant's testimony, her mother stated that the wage earner had lived in her house since 1966 except for absences due to incarceration and that he received his mail at her home while living there.
The wage earner's brother, who paid the burial expenses, supplied information on the certificate of death which indicated that the wage earner resided in New York City for 6 years immediately prior to his death. The wage earner's brother and sister also supplied information which indicated that the claimant and her husband were having marital difficulties and were separated for several years prior to his death. He also stated the claimant did not attend the wage earner's funeral.
The claimant furnished several documents which conteracted the brothers allegation and established her husband's intent to resume living together. She also stated that she did not attend her husband's funeral because she was threatened by her husband's brother and told not to have anything to do with the funeral or to attend the services.
Section 202(i) of the Social Security Act provides that the lump-sum death payment will be paid to the widow of the deceased wage earner if she and the deceased were "living in the same household" at the time of his death.
Section 404.1112 of Social Security Regulations No. 4, provides that the determination as to whether the parties were "living in the same household" shall be based upon the facts and circumstances as of the time of death of the deceased. A temporary absence of one spouse from the place of abode doe snot preclude a finding that they were "living in the same household." If a period of absence from the place of abode did not exceed 6 months and the absence was due to business or employment reasons, then this absence shall be considered temporary in the absence of evidence to the contrary.
After evaluating all the evidence of record, it is concluded that claimant and her husband lived together in the same house until September or October 1972, when he left for New York City because of employment reasons. Except for the statements made by the wage earner's brother and sister, there is no indication that the claimant and her husband did not intend to resume living together when her husband found a permanent place of residence. The period of absence did not exceed 6 months and was due to employment reasons. The Social Security regulations, referred to above, would consider this a temporary absence and permit a finding that claimant and her husband were "living in the same household" at the time of his death.
The fact that the claimant did not pay any of the funeral expenses for her husband does not preclude here from receiving the lump-sum death payment. As long as the claimant and her husband were "living in the same household," as defined by the regulations, at the time of his death, she is entitled to the lump-sum death payment.
It is held that claimant and the wage earner were "living in the same household" at the time of his death and that the claimant is, therefore, entitled to the lump-sum death payment under Section 202(i) of the Social Security Act.