SSR 68-71: Rescinded 1978

SSR 68-71

Where a widow, after attaining age 60, remarried in 1964, and in 1966

obtained a rabbinical divorce while a resident of New York, and filed

application for reentitlement to widow's insurance benefits on the

earnings record of her deceased husband, held, (1) under New York

law, a rabbinical divorce obtained in that State against a New York

resident is of no legal effect in that State, and, accordingly, the

widow's remarriage continued in existence; and (2) since the widow cannot

meet the requirement of section 202(e)(1) of the Act that she be "not

married," her benefit can be no greater than 50 percent of her deceased

husband's primary insurance amount under section 202(e)(4) of the Act.

P, a fully insured worker, died in October 1962 survived by W, his widow.

W filed application and became entitled beginning October 1962 to widow's

insurance benefits under section 202(e)(1) of the Social Security Act. In

June 1964, W, then over age 60, married a worker who was not then entitled

to social security benefits. In accordance with section 202(e)(1)(D) of

the Act in effect at the time of this marriage, W's entitlement to

benefits terminated with the month preceding the month in which she

remarried, i.e., with May 1964. In May 1966, W obtained a divorce issued

by a rabbi and thereupon filed an application for reentitlement to widow's

insurance benefits.

Prior to enactment of the Social Security Amendments of 1965, a woman

could become entitled to widow's insurance benefits on her deceased

husband's earnings record only if (among other requirements and subject to

certain exceptions) she had not remarried after her husband's death. Under

section 202(e)(1) of the Act as amended, however, a woman may become

entitled or reentitled to widow's insurance benefits (but no later than

September 1965) ie, among other requirements, she is not then married,

regardless of any intervening marriage after her deceased husband's death

r requirements and subject to

certain exceptions) she had not remarried after her husband's death. Under

section 202(e)(1) of the Act as amended, however, a woman may become

entitled or reentitled to widow's insurance benefits (but no later than

September 1965) ie, among other requirements, she is not then married,

regardless of any intervening marriage after her deceased husband's death.

The amount of the widow's insurance benefit of a widow so entitled to it,

is equal to 82 1/2 percent of her deceased husband's primary insurance

amount.

Under section 202(e)(4) of the Act, as amended, if a widow marries after

attaining age 60, the marriage is deemed not to have occurred. Such a

marriage will not preclude entitlement or reentitlement to widow's

insurance benefits on the earnings record of the widow's deceased husband,

nor will it terminate entitlement to such benefits already existing at the

time of the marriage. (See SSR 66-37, C.B. 1966, p. 18.) While married,

however, the widow will be entitled to a widow's insurance benefit of only

50 percent of her deceased husband's primary insurance

amount. [*]

The foregoing provisions of section 202(e)(1) and 202(e)(4) of the Act as

amended are effective for widow's insurance benefits beginning no earlier

than September 1965, but in the case of individuals not entitled to

benefits for August 1965, only on the basis of an application filed in or

after July 1965.

nefit of only

50 percent of her deceased husband's primary insurance

amount. [*]

The foregoing provisions of section 202(e)(1) and 202(e)(4) of the Act as

amended are effective for widow's insurance benefits beginning no earlier

than September 1965, but in the case of individuals not entitled to

benefits for August 1965, only on the basis of an application filed in or

after July 1965.

W remarried in June 1964, after attaining age 60, and filed application

for reentitlement to widow's insurance benefits in May 1966. Under section

202(e)(4) of the Act, W may be reentitled to widow's insurance benefits

beginning with September 1965, but her benefit amount is limited to 50

percent of P's primary insurance amount. The issue presented in this case

is whether W's benefit amount should be increased under section 202(e)(1)

of the Act to 82 1/2 percent of P's primary insurance amount beginning

with May 1966, the month in which she obtained the rabbinical divorce.

This depends on whether, under applicable State law, the rabbinical

divorce terminated W's marriage to her second husband, so that beginning

with May 1966 W would be considered "not married" as required by section

202(e)(1).

The purported divorce between W and her second husband was obtained in

New York, the matrimonial domicile was there, and the parties are now

domiciliaries of New York. Thus the effect of the divorce will depend upon

what recognition will be accorded it under New York law. Under New York

law, a rabbinical divorce obtained in that State against a New York

resident has no legal effect in that State. Chertok v. Chertok, 208

App. Div. 161, 203 N.Y. Supp. 163 (1st Dept. 1924). In the Chertok case, the Appellate Division stated:

now

domiciliaries of New York. Thus the effect of the divorce will depend upon

what recognition will be accorded it under New York law. Under New York

law, a rabbinical divorce obtained in that State against a New York

resident has no legal effect in that State. Chertok v. Chertok, 208

App. Div. 161, 203 N.Y. Supp. 163 (1st Dept. 1924). In the Chertok case, the Appellate Division stated:

The whole defense here is based on the rabbinical divorce obtained by

defendant from a rabbi in the borough of Brooklyn, New York City, while

defendant was domiciled in this city and under the jurisdiction of the

laws of this state. The Constitution of the state of New York (Article 1

§9) provides:

"Nor shall any divorce be granted otherwise than by due judicial

proceedings."

In view of this and the inhibition contained in section 1450 of the Penal

Law [* * *] we must hold that the writing, purporting to be a divorce

obtained from a rabbi in Brooklyn, cannot be recognized as having any

effect in this state * * *. It would be a curious anomaly in the law to

recognize as having any validity here an act expressly prohibited by

statute and made punishable as a misdemeanor.

Since the rabbinical divorce was ineffective under New York law, W's

remarriage is not terminated.

Accordingly, it is held that as long as W's marriage to her second

husband continues, she is entitled to widow's insurance benefits only

under section 202(e)(4) of the Act, and therefore her benefit amount must

remain at 50 percent of P's primary insurance amount.

[*] Under section 202(e)(3) of

the Act, if a widow, while entitled to widow's insurance benefits, marries a man who is entitled to childhood disability benefits, widower's

insurance benefits, or parent's insurance benefits, the widow's benefit

amount will not be reduced to 60 percent of the deceased husband's primary

insurance amount, but will continue at the full rate of 82 1/2 percent.