Federal Old-Age, Survivors, and Disability Insurance; Requirements for Entitlement to Widow(er)'s Benefits

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Social Security Administration

20 CFR Part 404

[Regulation No. 4]

RIN 0960-AD69

Federal Old-Age, Survivors, and Disability Insurance;

Requirements for Entitlement to Widow(er)'s Benefits

AGENCY: Social Security Administration, HHS.

ACTION: Final rule.

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SUMMARY: This final rule reflects technical changes which clarify

entitlement requirements for widow's and widower's benefits.

Specifically, it clarifies that entitlement or potential entitlement to

mother's/father's benefits, on the record of a fully insured

individual, in the month prior to the month of marriage to an insured

satisfies the alternative to the duration of marriage requirement for

widow(er)'s benefits. By publishing these changes, we will ensure that

the rules for widow(er)'s benefits are consistent with the related

sections of the Social Security Act (the Act).

EFFECTIVE DATE: March 30, 1994.

FOR FURTHER INFORMATION CONTACT: Harry J. Short, Legal Assistant,

Office of Regulations, Social Security Administration, 6401 Security

Boulevard, Baltimore, Maryland 21235, (410) 965-6243.

SUPPLEMENTARY INFORMATION: To be considered the widow or widower of a

deceased insured individual for purposes of entitlement to Social

Security benefits, the surviving spouse must meet at least one of the

alternatives set forth in sections 216 (c) and (g) of the Act. One of

those alternatives, described in sections 216 (c)(6)(A) and (g)(6)(A)

of the Act, is met if the surviving spouse, in the month before the

month of marriage to the insured, was entitled to, or upon filing an

application and attaining age 62 in that prior month would have been

entitled to, wife's, husband's, widow(er)'s, or parent's benefits on

the record of another insured individual. Sections 216 (c)(6)(A) and

(g)(6)(A) of the Act do not specifically mention entitlement or

potential entitlement to mother's or father's benefits. However, after

excluding the age and application requirements as directed by sections

216 (c)(6)(A) and (g)(6)(A), the entitlement criteria for a mother or

father on the record of a fully insured individual are the same as the

entitlement criteria for a widow or widower. Therefore, the benefit

categories of mother and father were included in 20 CFR 404.335(a)(4)

of the regulations at the time Subpart D was recodified.

Entitlement to widow(er)'s benefits must be based on the record of

a fully insured individual, whereas entitlement to father's or mother's

benefits can be based on the record of either a currently insured or a

fully insured individual. Therefore, for purposes of the alternative

discussed above, only those surviving spouses who previously were

entitled or potentially entitled to mother's or father's benefits based

on the record of a ``fully insured'' individual would also satisfy the

entitlement criteria for widow(er)'s benefits. Surviving spouses who

previously were entitled or potentially entitled to mother's or

father's benefits on the record of an individual who was only

``currently insured'' would not satisfy the alternative. To make

Sec. 404.335(a)(4) completely accurate and to ensure consistent

application of the statute, this regulation should state that the

alternative would be met only if the earlier insured, on whose record

the mother's or father's benefits were paid or were potentially

payable, was fully insured.

To clarify the rule in Sec. 404.335(a)(4) so that the wording is

consistent with the statute, we are adding parentheticals after the

words ``father's'' and ``mother's'' which will state ``based on the

record of a fully insured individual.''

Regulatory Procedures

Justification for Final Rule

The Department, even when not required by statute, as a matter of

policy, generally follows the Administrative Procedure Act (APA) notice

of proposed rulemaking and public comment procedures specified by 5

U.S.C. 553 in the development of its regulations. The APA provides

exceptions to its notice and public comment procedures when an agency

finds there is good cause for dispensing with such procedures on the

basis that they are impracticable, unnecessary, or contrary to the

public interest. We have determined that, under 5 U.S.C. 553(b)(B),

good cause exists for dispensing with the notice and public comment

procedures because such procedures are unnecessary. This rule merely

conforms a technical requirement in the regulation more closely to the

statute and does not involve the setting of any discretionary policy.

Executive Order 12866

We have consulted with the Office of Management and Budget and

determined that this rule is not significant and does not require

review under Executive Order 12866.

Regulatory Flexibility Act

We certify that this regulation will not have a significant

economic impact on a substantial number of small entities because this

rule affects only individuals. Therefore, a regulatory flexibility

analysis is not required.

Paperwork Reduction Act

This regulation imposes no reporting/recordkeeping requirements

necessitating clearance by the Office of Management and Budget.

(Catalog of Federal Domestic Assistance Program No. 93.802, Social

Security-Disability Insurance; 93.803, Social Security-Retirement

Insurance; 93.805, Social Security-Survivors Insurance)

List of Subjects in 20 CFR Part 404

Administrative practice and procedure, Death benefits, Disability

benefits, Old-Age, Survivors and Disability Insurance, Reporting and

recordkeeping requirements.

Dated: February 1, 1994.

Shirley Chater,

Commissioner of Social Security.

Approved: March 18, 1994.

Donna E. Shalala,

Secretary of Health and Human Services.

For the reasons set out in the preamble, part 404 of chapter III of

title 20 of the Code of Federal Regulations is amended to read as

follows:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE

(1950- )

1. The authority citation for subpart D of part 404 continues to

read as follows:

Subpart D--Old-Age, Disability, Dependents' and Survivors'

Insurance Benefits; Period of Disability

Authority: Secs. 202, 203(a) and (b), 205(a), 216, 223, 228(a)

through (e), and 1102 of the Social Security Act; 42 U.S.C. 402,

403(a) and (b), 405(a), 416, 423, 428(a) through (e), and 1302.

2. Section 404.335 is amended by revising paragraph (a)(4) to read

as follows:

Sec. 404.335 Who is entitled to widow's or widower's benefits.

* * * * *

(a) * * *

(4) In the month before you married the insured, you were entitled

to or, if you had applied and had been old enough, could have been

entitled to any of these benefits or payments: widow's, widower's,

father's (based on the record of a fully insured individual), mother's

(based on the record of a fully insured individual), wife's, husband's,

parent's, or disabled child's benefits; or annuity payments under the

Railroad Retirement Act for widows, widowers, parents, or children age

18 or older;

* * * * *

[FR Doc. 94-7515 Filed 3-29-94; 8:45 am]

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