20 CFR 404.1112

SSR 64-5

The worker lived with his wife and child but was away from home most of the time in the course of his duties as a seaman in the United States Navy. He died when his ship was lost at sea, and his body was not recovered. Held, his wife was "living in the same household" with him at the time of his death, within the meaning of section 202(i) of the Social Security Act, and may be entitled to a lump-sum death payment on his earnings record.

R, a career seaman, was aboard the U.S.S. Thresher, a submarine, when that vessel failed to resurface after a test dive. The Navy determined that all members of the crew, including R, had died April 10, 1963. Neither the vessel nor the bodies of the crew members were recovered. On May 2, 1963. R's widow filed application on his earnings record for the lump-sum death payment, mother's insurance benefits for herself, and child's insurance benefits on behalf of her minor son. R died fully insured on the basis of social security credits earned while serving in the Navy, and his primary insurance amount (based on his average earnings) was $102. The widow and child were each awarded monthly benefits of #76.50 (three-fourths of the $102 primary insurance amount) effective April 1963.

In connection with the widow's claim for the lump-sum death payment, the following additional facts were established. R his wife, and their son had lived together in their home while he was on leave or when his duties otherwise permitted, but his duties kept him away from home most of the time. He had last been at home a few days before his death, and the widow stated that his departure from home was caused solely by his naval duties. After being notified of R's death, the widow purchased a grave plot and had a marker erected on it in memory of her husband, at a cost of $125 which she paid.

Under section 202(i) of the Act, as pertinent in this case, upon the death of a fully or currently insured worker, a lump-sum payment ($255 or, if less, three times the worker's primary insurance amount) may be paid to the worker's surviving spouse if the latter was living in the same household with the worker when he died. If there is no surviving spouse who meets this requirement, the lump sum may (under specified conditions) be used to pay the worker's burial expenses incurred by or through a funeral home or, if all such burial expenses have been paid, to reimburse the person or persons who paid the worker's burial expenses. (This provision applies only to lump-sum death payments. A widow may be entitled to monthly survivor's benefits regardless of whether she was living in the same household with the worker when he died.)

At issue in this case is the question whether the claimant widow was "living in the same household" with R at the time of his death. If the "living in the same household" requirement is not met, no lump-sum death payment is payable to the widow even though she paid for a burial lot and marker; since R's body is not available for final disposition, these are not "burial expenses" within the meaning of section 202(i). (See SSR 63-38, C.B. 1963, p.11.) On the other hand, if she was "living in the same household" with the deceased worker when the latter died, she may be entitled to the lump sum regardless of who paid the worker's burial expenses or whether there were any "burial expenses" or whether the worker's body was available for burial.

A husband and wife are "living in the same household" if they have a common abode in which they live as man and wife (20 CFR 404.1112). Where this condition is met, "living in the same household" continues during temporary absences from home if the parties intend to continue living together in the same place, and therefore the death of one party while away from home during a temporary absence does not preclude a finding that he and his spouse were living in the same household at the time of his death. Under ยง 404.1112(b)(1) of Regulations No. 4 (20 CFR 404.1112), a worker's absence from his and his wife's home is, in absence of evidence to the contrary, considered temporary if caused by his service in the armed forces of the United States.

In the present case, the evidence clearly shows that she and R had a home in which they lived together, and that his absence from home at the time of his death was temporary in nature, being occasioned solely by the requirements of his service in the United States Navy. Accordingly, it is held that she was living in the same household with R at the time of his death, as required by section 202(i). Therefore, she may be paid a lump sum of $255 on his earnings record, in addition to mother's and child's insurance benefits, to which she and her son are respectively entitled.

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