SSR 79-24: SECTION 202(i) (42 U.S.C. 402(i)) LUMP-SUM DEATH PAYMENT -- LIVING IN THE SAME HOUSEHOLD

20 CFR 404.1112

SSR 79-24

The general issue is whether the claimant is entitled to the lump-sum

death payment based on the earning record of her husband, the wage earner.

The specific issue is whether the claimant was living in the same

household with her husband at the time of his death.

The claimant filed an application for the lump-sum death payment based on

the earnings record of the wage earner, who died on December 2, 1972, in

New York as a result of gunshot wounds. He had moved to New York in

September or October 1972 for employment purposes. He lived with his

sister in New York for about 2 months and had just leased his own

apartment the day before he was killed. The claimant was living with her

mother in Connecticut at the time of her husband's death.

The claimant and her husband were married in Connecticut in 1963. They

began living with the claimant's mother at her home in 1966. They paid $75

per month toward rental of the house, and except for temporary absences

when her husband was incarcerated, they continued to live there until he

went to New York in 1972 for employment purposes. He was last incarcerated

in 1971 for approximately 1 month. The claimant and her husband always

resumed living together after his release from prison. While residing in

New York prior to his death, the wage earner returned to Connecticut

several times to visit his wife.

In support of the claimant's testimony, her mother stated that the wage

earner had lived in her house since 1966 except for absences due to

incarceration and that he received his mail at her home while living

there.

esumed living together after his release from prison. While residing in

New York prior to his death, the wage earner returned to Connecticut

several times to visit his wife.

In support of the claimant's testimony, her mother stated that the wage

earner had lived in her house since 1966 except for absences due to

incarceration and that he received his mail at her home while living

there.

The wage earner's brother, who paid the burial expenses, supplied

information on the certificate of death which indicated that the wage

earner resided in New York City for 6 years immediately prior to his

death. The wage earner's brother and sister also supplied information

which indicated that the claimant and her husband were having marital

difficulties and were separated for several years prior to his death. He

also stated the claimant did not attend the wage earner's funeral.

The claimant furnished several documents which conteracted the brothers

allegation and established her husband's intent to resume living together.

She also stated that she did not attend her husband's funeral because she

was threatened by her husband's brother and told not to have anything to

do with the funeral or to attend the services.

Section 202(i) of the Social Security Act provides that the lump-sum

death payment will be paid to the widow of the deceased wage earner if she

and the deceased were "living in the same household" at the time of his

death.

d not attend her husband's funeral because she

was threatened by her husband's brother and told not to have anything to

do with the funeral or to attend the services.

Section 202(i) of the Social Security Act provides that the lump-sum

death payment will be paid to the widow of the deceased wage earner if she

and the deceased were "living in the same household" at the time of his

death.

Section 404.1112 of Social Security Regulations No. 4, provides that 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 deceased. A temporary absence of one spouse from the place

of abode doe snot preclude a finding that they were "living in the same

household." If a period of absence from the place of abode did not exceed

6 months and the absence was due to business or employment reasons, then

this absence shall be considered temporary in the absence of evidence to

the contrary.

After evaluating all the evidence of record, it is concluded that

claimant and her husband lived together in the same house until September

or October 1972, when he left for New York City because of employment

reasons. Except for the statements made by the wage earner's brother and

sister, there is no indication that the claimant and her husband did not

intend to resume living together when her husband found a permanent place

of residence. The period of absence did not exceed 6 months and was due to

employment reasons. The Social Security regulations, referred to above,

would consider this a temporary absence and permit a finding that claimant

and her husband were "living in the same household" at the time of his

death.

usband did not

intend to resume living together when her husband found a permanent place

of residence. The period of absence did not exceed 6 months and was due to

employment reasons. The Social Security regulations, referred to above,

would consider this a temporary absence and permit a finding that claimant

and her husband were "living in the same household" at the time of his

death.

The fact that the claimant did not pay any of the funeral expenses for

her husband does not preclude here from receiving the lump-sum death

payment. As long as the claimant and her husband were "living in the same

household," as defined by the regulations, at the time of his death, she

is entitled to the lump-sum death payment.

It is held that claimant and the wage earner were "living in the same

household" at the time of his death and that the claimant is, therefore,

entitled to the lump-sum death payment under Section 202(i) of the Social

Security Act.