20 CFR 404.356 and 404.1112
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.
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.
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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(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. 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.
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