SSR 64-5: SECTION 202(i). -- LUMP-SUM DEATH PAYMENT -- "LIVING IN THE SAME HOUSEHOLD"

20 CFR 404.1112

SSR 64-5

R, a career seaman, was aboard the U.S.S. Thresher, a submarine, when

that vessel failed to resurface after a test dive. The Navy determined

that all members of the crew, including R, had died April 10, 1963.

Neither the vessel nor the bodies of the crew members were recovered. On

May 2, 1963. R's widow filed application on his earnings record for the

lump-sum death payment, mother's insurance benefits for herself, and

child's insurance benefits on behalf of her minor son. R died fully

insured on the basis of social security credits earned while serving in

the Navy, and his primary insurance amount (based on his average earnings)

was $102. The widow and child were each awarded monthly benefits of #76.50

(three-fourths of the $102 primary insurance amount) effective April 1963.

In connection with the widow's claim for the lump-sum death payment, the

following additional facts were established. R his wife, and their son had

lived together in their home while he was on leave or when his duties

otherwise permitted, but his duties kept him away from home most of the

time. He had last been at home a few days before his death, and the widow

stated that his departure from home was caused solely by his naval duties.

After being notified of R's death, the widow purchased a grave plot and

had a marker erected on it in memory of her husband, at a cost of $125

which she paid.

s duties

otherwise permitted, but his duties kept him away from home most of the

time. He had last been at home a few days before his death, and the widow

stated that his departure from home was caused solely by his naval duties.

After being notified of R's death, the widow purchased a grave plot and

had a marker erected on it in memory of her husband, at a cost of $125

which she paid.

Under section 202(i) of the Act, as pertinent in this case, upon the

death of a fully or currently insured worker, a lump-sum payment ($255 or,

if less, three times the worker's primary insurance amount) may be paid to

the worker's surviving spouse if the latter was living in the same

household with the worker when he died. If there is no surviving spouse

who meets this requirement, the lump sum may (under specified conditions)

be used to pay the worker's burial expenses incurred by or through a

funeral home or, if all such burial expenses have been paid, to reimburse

the person or persons who paid the worker's burial expenses. (This

provision applies only to lump-sum death payments. A widow may be entitled

to monthly survivor's benefits regardless of whether she was living in the

same household with the worker when he died.)

At issue in this case is the question whether the claimant widow was

"living in the same household" with R at the time of his death. If the

"living in the same household" requirement is not met, no lump-sum death

payment is payable to the widow even though she paid for a burial lot and

marker; since R's body is not available for final disposition, these are

not "burial expenses" within the meaning of section 202(i). (See SSR

63-38, C.B. 1963, p.11.) On the other hand, if she was "living in the same

household" with the deceased worker when the latter died, she may be

entitled to the lump sum regardless of who paid the worker's burial

expenses or whether there were any "burial expenses" or whether the

worker's body was available for burial.

not "burial expenses" within the meaning of section 202(i). (See SSR

63-38, C.B. 1963, p.11.) On the other hand, if she was "living in the same

household" with the deceased worker when the latter died, she may be

entitled to the lump sum regardless of who paid the worker's burial

expenses or whether there were any "burial expenses" or whether the

worker's body was available for burial.

A husband and wife are "living in the same household" if they have a

common abode in which they live as man and wife (20 CFR 404.1112). Where

this condition is met, "living in the same household" continues during

temporary absences from home if the parties intend to continue living

together in the same place, and therefore the death of one party while

away from home during a temporary absence does not preclude a finding that

he and his spouse were living in the same household at the time of his

death. Under § 404.1112(b)(1) of Regulations No. 4 (20 CFR 404.1112), a

worker's absence from his and his wife's home is, in absence of evidence

to the contrary, considered temporary if caused by his service in the

armed forces of the United States.

In the present case, the evidence clearly shows that she and R had a home

in which they lived together, and that his absence from home at the time

of his death was temporary in nature, being occasioned solely by the

requirements of his service in the United States Navy. Accordingly, it is

held that she was living in the same household with R at the time of his

death, as required by section 202(i). Therefore, she may be paid a lump

sum of $255 on his earnings record, in addition to mother's and child's

insurance benefits, to which she and her son are respectively entitled.