SSR 68-5: Rescinded 1984

20 CFR 404.356 and 404.1112

SSR 68-5

Where an insured worker is survived by a spouse who was "living in the

same household" with her at the time of her death but who neither paid the

burial expenses nor filed application for the lump-sum death payment, and

application authorizing payment of the lump sum expenses, held, under section 202(i) of the Social Security Act, the lump-sum death

payment may be made only to, and upon application by, the surviving spouse

without regard to the burial expenses, unless such spouse should die

before receiving payment.

W, a fully insured worker, died June 20, 1964, survived by her husband,

T. The couple married in 1954 and had been living together in the same

household when W died. Funeral arrangements were made jointly by H, the

sister of W, and by T. It was agreed that H was to pay all burial expenses

except that which might be payable as the lump-sum death payment. On

November 10, 1964, H, having paid all but $200 of the burial expenses,

filed application for the lump-sum death payment and, in accordance with

the provisions of section 202(i) of the Social Security Act, she

authorized the Social Security Administration to make direct payment of

the lump sum to the funeral home through which the burial expenses had

been incurred. Although T had inquired as to payment of the lump-sum

benefit, no application was completed by him and his present whereabouts

is unknown.

nt and, in accordance with

the provisions of section 202(i) of the Social Security Act, she

authorized the Social Security Administration to make direct payment of

the lump sum to the funeral home through which the burial expenses had

been incurred. Although T had inquired as to payment of the lump-sum

benefit, no application was completed by him and his present whereabouts

is unknown.

Section 202(i) of the Act, as amended, provides in pertinent part that

upon the death of an individual who died fully or currently insured, an

amount equal to three times such individual's primary insurance amount, or

an amount equal to $255, whichever is smaller, shall be paid in a lump sum

to the person, if any, determined by the Secretary to be the widow or

widower of the deceased and to have been living in the same household with

the deceased at the time of death. If there is no such person, or if such

person dies before receiving payment, then such amount is to be paid in

the following order:

- To the funeral home, for unpaid burial expenses incurred by or through

such home. This may be paid to the funeral home if, within 2 years after

the date of the worker's death, application is filed by a person who

assumed responsibility for the payment of all or part of the burial

expenses. If nobody assumes such responsibility within 90 days after the

date of the worker's death, payment of such amount may be made directly to

the funeral home on its own application.

- To the person or persons who actually paid burial expenses of the worker

incurred by or through a funeral home.

- To the person or persons who actually paid burial expenses of the worker

which were not incurred by or through a funeral home, such as expenses of

opening and closing the grave and providing the burial plot.

t may be made directly to

the funeral home on its own application.

- To the person or persons who actually paid burial expenses of the worker

incurred by or through a funeral home.

- To the person or persons who actually paid burial expenses of the worker

which were not incurred by or through a funeral home, such as expenses of

opening and closing the grave and providing the burial plot.

To the funeral home, for unpaid burial expenses incurred by or through

such home. This may be paid to the funeral home if, within 2 years after

the date of the worker's death, application is filed by a person who

assumed responsibility for the payment of all or part of the burial

expenses. If nobody assumes such responsibility within 90 days after the

date of the worker's death, payment of such amount may be made directly to

the funeral home on its own application.

To the person or persons who actually paid burial expenses of the worker

incurred by or through a funeral home.

To the person or persons who actually paid burial expenses of the worker

which were not incurred by or through a funeral home, such as expenses of

opening and closing the grave and providing the burial plot.

The term "living in the same household" is defined in section 404.1112 of

Social Security Administration Regulations No. 4 (20 CFR 404.1112) as

follows:

(a) Defined. —A husband and wife were "living in the same

household" if they customarily lived together as husband and wife in the

same place of abode. The temporary absence of one spouse from such place

of abode does not preclude a finding that they were "living in the same

household"

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curity Administration Regulations No. 4 (20 CFR 404.1112) as

follows:

(a) Defined. —A husband and wife were "living in the same

household" if they customarily lived together as husband and wife in the

same place of abode. The temporary absence of one spouse from such place

of abode does not preclude a finding that they were "living in the same

household"

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*    *    *

(d) Time When "Living in the Same Household" Had to

Exist. —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 spouse on whose earnings record a lump-sum

death payment is claimed.

From the information supplied by H and T there is no dispute as to the

existing marriage between W and T; nor is there any dispute as to their

living together in the same household at the time of W's death; nor is

there any indication that T has died, even though his whereabouts is

unknown.

The questions presented are whether the funeral home may be paid the

lump-sum death payment as authorized by H in her application of November

10, 1964, and whether H is entitled to all or any part of the lump-sum

death payment on the basis of her application.

Where the evidence establishes, as in this case, that the deceased worker

is survived by a spouse who was living in the same household with the

worker at the time of death, section 202(i) of the Act is specific in

providing that only such surviving spouse of the deceased worker is, upon

filing an application, entitled to the lump-sum death payment. Such

entitlement is not contingent on the surviving spouse's payment of any

part of the burial expenses. In the circumstances present in this case,

the lump sum payable solely on the basis of marital relationship and

without regard to who paid or might be obligated to pay the burial

expenses, and whether or not the funeral home by or through which burial

expenses were incurred remains unpaid

entitlement is not contingent on the surviving spouse's payment of any

part of the burial expenses. In the circumstances present in this case,

the lump sum payable solely on the basis of marital relationship and

without regard to who paid or might be obligated to pay the burial

expenses, and whether or not the funeral home by or through which burial

expenses were incurred remains unpaid. If a spouse eligible to receive the

lump-sum death payment survives, whether or not he has filed application,

payment cannot be made to any other person or to a funeral home, unless

such surviving spouse should die before receiving payment.

Accordingly, it is held, that the funeral home may not be paid the

lump-sum death payment, nor is H entitled to any part of such payment

despite her payment of most of the burial expenses, since the deceased

worker is survived by a spouse who was living in the same household with

her at the time of her death.