SSR 76-41: SECTION 1614(b) (42 U.S.C. 1382c(b)) -- SUPPLEMENTAL SECURITY INCOME -- DEFINITION OF ELIGIBLE SPOUSE

(Rescinded 3/30/1995)

20 CFR 416.1040 and 416.1321(a)

SSR 76-41

The claimant and her husband were married on January 24, 1971. Prior to

September 30, 1974, both were eligible for supplemental security income

benefits and were receiving said benefits as an eligible couple. A

determination was made that, effective October 1974, the benefits would be

reduced in consideration of income which her husband was receiving as an

employee.

The claimant objected to such reduction stating that she and her husband

separated on September 30, 1974. Her husband left her after they received

the notices that their checks would be reduced. The claimant's husband

allegedly stated he would not support her.

Regulations No. 16, section 416.1040 provides, in general, that where an

eligible individual and an eligible spouse are receiving payments under

title XVI of the Social Security Act, the eligible spouse will not longer

qualify as a spouse, effective with the month following the month in which

the marriage is terminated or deemed terminated. The eligible spouse, if

otherwise qualified, may receive benefits as an eligible individual

beginning with the month following such month of termination. A marriage

may be terminated by death, divorce, or annulment. Where a court of

competent jurisdiction issues a decree of divorce, both parties shall be

deemed not married to each other beginning with the month following the

month in which the decree becomes final. Section 416.1040(c) provides, in

effect, that in the case of separation of parties, where neither party

begins living with another individual, that such eligible individual and

eligible spouse shall not be considered husband and wife effective with

the month in which they have been separated for six months. The six month

period of separation shall be counted form the date of separation

. Section 416.1040(c) provides, in

effect, that in the case of separation of parties, where neither party

begins living with another individual, that such eligible individual and

eligible spouse shall not be considered husband and wife effective with

the month in which they have been separated for six months. The six month

period of separation shall be counted form the date of separation. Where,

however, one of the parties begins living with another individual, the

eligible individual and eligible spouse shall not be considered husband

and wife effective with the month in which the eligible individual or the

eligible spouse commenced living in the same household with such other

person.

The claimant had not been living with her husband or any other individual

since September 30, 1974, and for a period of at least six months, and

stated that to the best of her knowledge, her husband had not been living

with another individual for a similar period of time.

The marriage was terminated by divorce effective March 25, 1975.

Therefore, the parties would have been deemed not to be married to each

other beginning with the month following the month in which the decree

became final, in this case, April 1975.

In addition, on March 30, 1975, the claimant and her spouse were

separated for a period of six months, neither party having begun living

with another individual in the interim. Thus, the claimant and her spouse

should not have been considered to be husband and wife for the purposes of

title XVI of the Social Security Act effective March 30, 1975, and the

claimant, being presumably otherwise qualified, should have received

payments as an eligible individual effective the following month, April

1975.

y having begun living

with another individual in the interim. Thus, the claimant and her spouse

should not have been considered to be husband and wife for the purposes of

title XVI of the Social Security Act effective March 30, 1975, and the

claimant, being presumably otherwise qualified, should have received

payments as an eligible individual effective the following month, April

1975.

It is, however, the contention of the claimant and there is an abundance

of evidence, both in the form of testimony and documentary evidence to the

effect that the claimant did not receive support from her former husband

prior to September 30, 1974, nor after that date. There is, however, no

provision under title XVI of the Social Security Act for consideration of

whether support is being given between members of an eligible couple, that

is, an eligible individual and an eligible spouse, or how benefits which

are received are divided and apportioned between them, or how such

benefits are to be used. The law provides that an eligible individual with

an eligible spouse receives benefits at a different rate than that of an

eligible individual alone. Whether a member of an eligible couple is or is

not receiving support from her spouse is, therefore, not determinative of

the issues to be decided in this case.

The claimant further contended that her former husband's benefits were

terminated effective December 1, 1974, and that following the separation

on September 30, 1974, the husband maintained a separate residence where

he received his SSI checks. She further stated that payments continued

until December 1, 1974, then his benefits were terminated as his October

check was returned to Social Security because he no longer resided at the

address he had previously given and no additional or forwarding address

was provided.

separation

on September 30, 1974, the husband maintained a separate residence where

he received his SSI checks. She further stated that payments continued

until December 1, 1974, then his benefits were terminated as his October

check was returned to Social Security because he no longer resided at the

address he had previously given and no additional or forwarding address

was provided.

The claimant contends her husband did not receive payments after

September 1, 1974, and for all practical purposes was terminated on or

about October 1, 1974. Since the theory of a reduced check to the claimant

is based on payments to her spouse, no reduction was in order after

October 1, 1974, as her spouse at that time was receiving no payments.

Subpart M of Social Security Regulations No. 16 provides for suspensions

and terminations of supplemental security income benefits. Section

416.132(a) of said Subpart M provides as follows:

The husband's benefits were not suspended or terminated within the

meaning of the above cited section of Regulations No. 16, but the payments

were suspended for administrative reasons, as when mail is returned as

undeliverable by the postal service and the Social Security Administration

does not have a valid mailing address for a recipient. In the absence of

evidence to the contrary, it appears the husband continued to be eligible

for benefits and was a member of an "eligible couple" from the time of

separation through the month of March. The claimant, therefore, was also a

member of an eligible couple (or more accurately) an eligible individual

with an eligible spouse.

Therefore, it is held that the claimant's supplemental security income

benefits should have been reduced effective October 1974 because of her

eligible spouse's income, but that claimant being otherwise qualified,

should receive payments as an eligible individual effective April 1975.