SSR 68-1: SECTIONS 202(b)(1) 202(q). -- WIFE'S INSURANCE BENEFITS -- REENTITLEMENT OF DIVORCED WIFE -- AMOUNT OF BENEFIT REDUCTION BEFORE AND AFTER AGE 65

SSR 68-1

W, the wife of A, became entitled to wife's insurance benefits on A's

earnings record beginning with April 1963, the month in which she attained

age 62. Since W had elected to receive reduced benefits for 36 months

before the month in which she would attain age 65, the monthly benefit

amount which would have been paid her had her entitlement begun at age 65

was reduced under the provisions of section 202(q)(1) of the Social

Security Act by 25 percent (36 months times 25/36 of 1 percent). In

January 1965, A and W were divorced, an event which terminated W's

entitlement to wife's insurance benefits under the provisions of section

202(b)(1) of the Act as then in effect.

However, the Social Security Amendments of 1965 (P.L. 89-97, enacted July

30, 1965) liberalized section 202(b)(1) of the Act to permit payment of

wife's insurance benefits to a divorcee who has attained age 62 and had

been married to the worker for a period of 20 years immediately before the

date her divorce became final. This provision is applicable with respect

to monthly insurance benefits beginning no earlier than September 1965.

(For a full discussion of the applicability of section 202(b)(1) to cases

where divorce occurred prior to enactment of the Social Security

Amendments of 1965, see SSR 67-1 (January 1967.))

Since W had attained age 62 and had been married to A for more than 20

years at the time she and A were divorced, her entitlement to wife's

insurance benefits on A's earnings record was reinstated on the basis of a

new application, effective with September 1965.

1) to cases

where divorce occurred prior to enactment of the Social Security

Amendments of 1965, see SSR 67-1 (January 1967.))

Since W had attained age 62 and had been married to A for more than 20

years at the time she and A were divorced, her entitlement to wife's

insurance benefits on A's earnings record was reinstated on the basis of a

new application, effective with September 1965.

While the Social Security Amendments of 1965 amended section 202(b)(1) of

the Act as indicated above so as to permit reinstatement of entitlement to

wife's insurance benefits which had previously been terminated by divorce,

there was no parallel amendment to section 202(q) of the Act to specify

whether, or to what extent, nonentitlement months may be omitted in

calculating the reduced benefit amount in such reinstatement cases.

Section 202(q) of the Act, relating to reduction of wife's and other

insurance benefits, provides in pertinent part as follows:

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The question to be resolved in this case is whether the months for which

W was not entitled to benefits (January through August 1965) may be

omitted from the "reduction period" as defined in section 202(q)(6), and

from the "adjusted reduction period," as defined in section 202(q)(7), in

computing the reduced benefit amount payable to W: (1) for the months

beginning with September 1965 and before attainment of age 65, i.e., for

September 1965 through March 1966, and (2) for the months beginning with

the month in which she attained age 65, i.e., for April 1966 and following

months. If the nonentitlement months (January through August 1965) may be

omitted from the "reduction period" and "adjusted reduction period," then

W's benefit amount would be reduced by 19.44 percent (28 months times

25/36 of 1 percent) rather than 25 percent (36 months times 25/36 of 1

percent).

beginning with

the month in which she attained age 65, i.e., for April 1966 and following

months. If the nonentitlement months (January through August 1965) may be

omitted from the "reduction period" and "adjusted reduction period," then

W's benefit amount would be reduced by 19.44 percent (28 months times

25/36 of 1 percent) rather than 25 percent (36 months times 25/36 of 1

percent).

To consider the absence of a specific statutory directive on the point to

mean that nonentitlement months must always be included in

calculating the amount of the benefit reduction in reinstatement cases of

the kind involved here could lead to clearly inequitable results. It is

well settled that a statute need not be literally read when it is clear

that the Congress intended something it omitted to express, especially

where such literal interpretation would lead to a clearly unjust

result.

Lacking a specific directive for determining the benefit amount in the

type of situation presenter here, reference must be made to the method of

calculating the reduction which the Congress expressly provided for use in

analogous situations. On that basis, it is concluded that in calculating

the reduction of the benefit amount of a claimant whose entitlement to

wife's insurance benefits is reinstated under the circumstances of this

case, the months of nonentitlement because of a prior divorce must be

included in the "reduction period" (as defined in section 202(q)(6)) in

computing the claimant's benefit amount for months before the month in

which she attained age 65

lating

the reduction of the benefit amount of a claimant whose entitlement to

wife's insurance benefits is reinstated under the circumstances of this

case, the months of nonentitlement because of a prior divorce must be

included in the "reduction period" (as defined in section 202(q)(6)) in

computing the claimant's benefit amount for months before the month in

which she attained age 65. This conclusion is based on the analogous

situation where the Congress, in enacting the provisions of section 202(q)

quoted above, clearly did not intend, in computing a claimant's

benefit amount for months before age 65, to exclude from the "reduction

period" those months in which the claimant received no benefit payments

because of deductions under section 203(b) (deductions on account of

work), sections 203(c)(1) and 203(d)(1) (deductions because of noncovered

work outside the United States), or section 222(b) (deductions for refusal

to accept rehabili- clearly did not intend in the foregoing situations

that a wife-beneficiary be given a "credit" for months in which she

received no benefit payments, at least in the calculation of her benefit

amount for months before the month of attaining age 65, there appears to

be no reason for concluding that the Congress intended that a

wife-beneficiary be given a "credit" for those months in which, by reason

of her divorce from the worker, she did not receive wife's insurance

benefits.

it" for months in which she

received no benefit payments, at least in the calculation of her benefit

amount for months before the month of attaining age 65, there appears to

be no reason for concluding that the Congress intended that a

wife-beneficiary be given a "credit" for those months in which, by reason

of her divorce from the worker, she did not receive wife's insurance

benefits.

On the other hand, section 202(q)(7) of the Act does provide that months

in which the above-mentioned section 203 and section 222(b) deductions are

imposed, as well as months of nonentitlement where the spouse's disability

has ceased, will be excluded from the "adjusted reduction period" in

computing the amount of the wife's insurance benefit payable beginning

with the month in which she attains age 65 . Since the Congress did

allow a "credit" for those months in computing the benefit amount for the

month of attainment of age 65 and thereafter, a similar "credit" in the

type of situation under consideration here would seem to be consonant with

Congressional policy. Thus, where entitlement to wife's insurance benefits

before age 65 was terminated by divorce but was later reinstated under the

Act as amended in 1965, nonentitlement months will be omitted from the

"adjusted reduction period" in calculating the amount of the reduced

wife's insurance benefit for months beginning with the month in which the

beneficiary attains age 65.

ongressional policy. Thus, where entitlement to wife's insurance benefits

before age 65 was terminated by divorce but was later reinstated under the

Act as amended in 1965, nonentitlement months will be omitted from the

"adjusted reduction period" in calculating the amount of the reduced

wife's insurance benefit for months beginning with the month in which the

beneficiary attains age 65.

Accordingly, it is held that in computing the amount of the

reduction in W's benefit for the months September 1965 through March 1966

(i.e., for months before she attained age 65), the months for which she

was not entitled to benefits (January through August 1965) will be

included in the "reduction period," resulting in a reduction of 25 percent

in her benefit amount (36 months times 25/36 of 1 percent); but in

computing the amount of the reduction in W's benefit for April 1966 (the

month in which she attained age 65) and following months, the months for

which she was not entitled to benefits will be excluded from the "adjusted

reduction period," resulting in a reduction of 19.44 percent in her

benefit amount (28 months times 25/36 of 1 percent).