Living in the Same Household and the Lump-Sum Death Payment

SOCIAL SECURITY ADMINISTRATION

20 CFR Part 404

[Regulations No. 4]

RIN 0960-AE20

Living in the Same Household and the Lump-Sum Death Payment

AGENCY: Social Security Administration.

ACTION: Final rules.

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SUMMARY: We are revising our rules on ``living in the same household''

(LISH) and the lump-sum death payment (LSDP) to bring them into accord

with legislation that restricted the payment of the LSDP. This revision

includes the removal from our regulations of several outdated sections

and paragraphs. We also are incorporating into our rules the policy

established previously in a Social Security Ruling (SSR) that

interpreted the definition of LISH to allow for extended separations

that are based solely on medical reasons.

EFFECTIVE DATE: These rules are effective September 9, 1996.

FOR FURTHER INFORMATION CONTACT: Daniel T. Bridgewater, Legal

Assistant, Division of Regulations and Rulings, Social Security

Administration, 6401 Security Boulevard, Baltimore, MD 21235, (410)

965-3298 for information about these rules. For information on

eligibility or claiming benefits, call our national toll-free number,

1-800-772-1213.

SUPPLEMENTARY INFORMATION:

Background

Prior to passage of the Omnibus Budget Reconciliation Act of 1981,

Public Law 97-35, the widow(er) of a deceased worker could qualify for

the LSDP if he/she had been LISH with the deceased at the time of death

or, under certain conditions, if he/she paid the burial expenses of the

deceased. Thus, a widow(er) who was not LISH with the deceased could

still receive the LSDP if he/she paid the deceased's burial expenses.

Public Law 97-35 redefined who could qualify for the LSDP.

Effective September 1, 1981, the LSDP no longer was payable to any

individuals, other than those described in Public Law 97-35, or to

funeral homes.

Under Public Law 97-35, the LSDP is payable to 3 categories of

individuals: (1) the surviving spouse of the deceased who was LISH with

the deceased at the time of death; (2) a person who is entitled to (or

was eligible for) benefits on the deceased's earnings record for the

month of death as a widow(er) or as the mother or father of a child of

the deceased; or (3) a child of the deceased who is entitled to (or was

eligible for) benefits on the deceased's earnings record for the month

of death.

For those widow(ers) who were not LISH, a possible anomaly was

created by the LSDP limitations in Public Law 97-35 and existing

regulations. An example of such an anomaly is the following situation.

A worker had been living in a nursing home for 3 years prior to his

death because his wife was unable to provide the daily medical care he

needed. Until his death, the worker was visited frequently by his wife,

who lived in the house to which the worker would have returned if he

were able. The widow was receiving a Retirement Insurance Benefit (RIB)

which exceeded her late husband's Primary Insurance Amount (PIA). Based

on Public Law 97-35 and a strict interpretation of the regulatory

definition of LISH, this widow would not qualify for the LSDP because

she was neither LISH nor entitled to benefits based on her late

husband's earnings record. (However, if the widow's RIB did not exceed

her late husband's PIA, she would qualify for the LSDP.)

Present Policy

Operating instructions, as well as most of the pertinent regulatory

sections, have been changed to reflect the changes in the law

established by Public Law 97-35. To qualify as a LISH spouse, the

widow(er) and the deceased must have ``customarily lived together as

husband and wife in the same residence'' (Sec. 404.347). While

temporary separations do not necessarily preclude the Social Security

Administration (SSA) from considering a couple to be LISH, extended

separations (including most that last 6 months or more) generally

indicate the couple was not LISH.

However, in order to avoid the possible anomaly discussed above,

SSR 82-50 was issued to provide for an exception when an extended

separation is based solely on medical reasons. SSR 82-50 states:

If a husband and wife are (or were) separated and continue(d) to

be separated, solely for medical reasons, SSA may consider them to

be living in the same household even if the separation is (or was)

likely to be permanent and there is (or was) little or no

expectation of the parties again physically residing together. As

long as the spouse who is now applying for the LSDP or spouse's

benefits based on a deemed marriage has continued to demonstrate

strong personal and/or financial concern for the worker, SSA will

assume they would have lived together (absent evidence to the

contrary) had the medical reasons not necessitated their separation,

and will pay the LSDP or spouse's benefits to the spouse.

New Policy

Since there are still some sections of our regulations that refer

to the law on entitlement to the LSDP which predated Public Law 97-35

and since these sections no longer are applicable, we are updating or

removing them. We are eliminating obsolete Secs. 404.393, 404.394,

404.395, and 404.765 and paragraphs 404.2(a)(2) through (a)(6),

404.3(a), 404.612(e), and 404.615(b).

Also, we are incorporating the LISH policy interpretation found in

SSR 82-50 into our regulations. The new regulatory definition will

clearly allow for extended separations due to the confinement of either

spouse in a nursing home, hospital, or other medical institution. As

long as evidence indicates the husband and wife were initially

separated, and continue to be separated, solely for medical reasons and

would otherwise have resided together, they will be considered to be

LISH. Because of this action, we are rescinding SSR 82-50 upon the

effective

[[Page 41330]]

date of these rules. This rescission appears in the ``Notices'' section

of today's Federal Register.

On December 6, 1995, we published these final rules as proposed

rules in the Federal Register at 60 FR 62354 with a 60-day comment

period. We received comments from only one source, which represents the

largest professional organization of funeral directors in the United

States. The commenter fully supported the proposed rules. Therefore, we

are publishing the final rules essentially unchanged from the proposed

rules.

Regulatory Procedures

Regulatory Flexibility Act

We certify that these final rules will not have a significant

economic impact on a substantial number of small entities since these

rules affect only individuals. Therefore, a regulatory flexibility

analysis as provided in Public Law 96-354, the Regulatory Flexibility

Act, is not required.

Paperwork Reduction Act

These final rules impose no additional reporting or recordkeeping

requirements subject to the Office of Management and Budget clearance.

(Catalog of Federal Domestic Assistance Program Nos. 96.001 Social

Security--Disability Insurance; 96.002 Social Security--Retirement

Insurance; 96.004 Social Security--Survivors Insurance)

List of Subjects in 20 CFR Part 404

Administrative practice and procedure, Blind, Disability benefits,

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

recordkeeping requirements, Social Security.

Dated: July 25, 1996.

Shirley S. Chater,

Commissioner of Social Security.

For the reasons set out in the preamble, subparts A, D, G, and H of

part 404 of chapter III of title 20 of the Code of Federal Regulations

are amended as follows:

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

(1950- )

Subpart A--[Amended]

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

read as follows:

Authority: Secs. 203, 205(a), 216(j), and 702(a)(5) of the

Social Security Act (42 U.S.C. 403, 405(a), 416(j), and 902(a)(5)).

Sec. 404.2 [Amended]

2. Section 404.2 is amended by removing paragraphs (a)(2) through

(a)(6) and redesignating paragraph (a)(7) as paragraph (a)(2).

Sec. 404.3 [Amended]

3. Section 404.3 is amended by removing paragraph (a) and

redesignating paragraphs (b) and (c) as paragraphs (a) and (b),

respectively.

Subpart D--[Amended]

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

read as follows:

Authority: Secs. 202, 203(a) and (b), 205(a), 216, 223, 225,

228(a)-(e), and 702(a)(5) of the Social Security Act (42 U.S.C. 402,

403(a) and (b), 405(a), 416, 423, 425, 428(a)-(e), and 902(a)(5)).

5. Section 404.347 is revised to read as follows:

Sec. 404.347 ``Living in the same household'' defined.

Living in the same household means that you and the insured

customarily lived together as husband and wife in the same residence.

You may be considered to be living in the same household although one

of you is temporarily absent from the residence. An absence will be

considered temporary if:

(a) It was due to service in the U.S. Armed Forces;

(b) It was 6 months or less and neither you nor the insured were

outside of the United States during this time and the absence was due

to business, employment, or confinement in a hospital, nursing home,

other medical institution, or a penal institution;

(c) It was for an extended separation, regardless of the duration,

due to the confinement of either you or the insured in a hospital,

nursing home, or other medical institution, if the evidence indicates

that you were separated solely for medical reasons and you otherwise

would have resided together; or

(d) It was based on other circumstances, and it is shown that you

and the insured reasonably could have expected to live together in the

near future.

6. Section 404.390 is amended by revising the second sentence to

read as follows:

Sec. 404.390 General.

* * * If the insured is not survived by a widow(er) who meets this

requirement, all or part of the $255 payment may be made to someone

else as described in Sec. 404.392.

7. Section 404.392 is amended by revising the section heading and

the introductory text of paragraph (a) to read as follows:

Sec. 404.392 Who is entitled to the lump-sum death payment when there

is no widow(er) who was living in the same household.

(a) General. If the insured individual is not survived by a

widow(er) who meets the requirements of Sec. 404.391, the lump-sum

death payment shall be paid as follows:

* * * * *

Sec. 404.393 [Removed]

8. Section 404.393 is removed.

Sec. 404.394 [Removed]

9. Section 404.394 is removed.

Sec. 404.395 [Removed]

10. Section 404.395 is removed.

Subpart G--[Amended]

11. The authority citation for subpart G of part 404 continues to

read as follows:

Authority: Secs. 202(i), (j), (o), (p), and (r), 205(a),

216(i)(2), 223(b), 228(a), and 702(a)(5) of the Social Security Act

(42 U.S.C. 402(i), (j), (o), (p), and (r), 405(a), 416(i)(2),

423(b), 428(a), and 902(a)(5)).

Sec. 404.612 [Amended]

12. Section 404.612 is amended by removing paragraph (e) and

redesignating paragraphs (f), (g), and (h) as paragraphs (e), (f), and

(g), respectively.

Sec. 404.615 [Amended]

13. Section 404.615 is amended by removing paragraph (b) and

redesignating paragraphs (c) and (d) as paragraphs (b) and (c),

respectively.

Subpart H--[Amended]

14. The authority citation for subpart H of part 404 continues to

read as follows:

Authority: Secs. 205(a) and 702(a)(5) of the Social Security Act

(42 U.S.C. 405(a) and 902(a)(5)).

Sec. 404.765 [Removed]

15. Section 404.765 is removed.

[FR Doc. 96-20121 Filed 8-7-96; 8:45 am]

BILLING CODE 4190-22-P