Old-Age, Disability, Dependents' and Survivors' Insurance

[Title 20 CFR D]
[Code of Federal Regulations (annual edition) - April 1, 1996 Edition]
[Title 20 - EMPLOYEES' BENEFITS]
[Chapter III - SOCIAL SECURITY ADMINISTRATION]
[Part 404 - FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )]
[Subpart D - Old-Age, Disability, Dependents' and Survivors' Insurance]
[From the U.S. Government Publishing Office]

20
EMPLOYEES' BENEFITS
2
1996-04-01
1996-04-01
false
Old-Age, Disability, Dependents' and Survivors' Insurance
D
Subpart D

EMPLOYEES' BENEFITS
SOCIAL SECURITY ADMINISTRATION
FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

Subpart D--Old-Age, Disability, Dependents' and Survivors' Insurance
Benefits; Period of Disability

Sec. 404.301 Introduction.

This subpart sets out what requirements you must meet to qualify for
social security benefits, how your benefit amounts are figured, when
your right to benefits begins and ends, and how family relationships are
determined. These benefits are provided by title II of the Social
Security Act. They include--
(a) For workers, old-age and disability benefits and benefit
protection during periods of disability;
(b) For a worker's dependents, benefits for a worker's wife,
divorced wife, husband, divorced husband, and child;
(c) For a worker's survivors, benefits for a worker's widow,
widower, divorced wife, child, and parent, and a lump-sum death payment;
and
(d) For uninsured persons age 72 or older, special payments.

Sec. 404.302 Other regulations related to this subpart.

This subpart is related to several others. Subpart H sets out what
evidence you need to prove you qualify for benefits. Subpart P describes
what is needed to prove you are disabled. Subpart E describes when your
benefits may be reduced or stopped for a time. Subpart G describes the
need for and the effect of an application for benefits. Part 410
describes when you may qualify for black lung benefits. Part 416
describes when you may qualify for supplemental security income. Also 42
CFR part 405 describes when you may qualify for hospital and medical
insurance if you are aged, disabled, or have chronic kidney disease.

Sec. 404.303 Definitions.

As used in this subpart:
Apply means to sign a form or statement that the Social Security
Administration accepts as an application for benefits under the rules
set out in subpart G.
Eligible means that a person would meet all the requirements for
entitlement to benefits for a period of time but has not yet applied.
Entitled means that a person has applied and has proven his or her
right to benefits for a period of time.
Insured person or the insured means someone who has enough earnings
under social security to permit payment of benefits on his or her
earnings record. The requirements for becoming insured are described in
subpart B.
Permanent home means the true and fixed home (legal domicile) of a
person. It is the place to which a person intends to return whenever he
or she is absent.
Primary insurance amount means an amount that is determined from the
average monthly earnings creditable to the insured person. This term and
the manner in which it is computed are explained in subpart C.
We or Us means the Social Security Administration.
You means the person who has applied for benefits or the person for
whom someone else has applied.

Sec. 404.304 General rules on benefit amounts.

This subpart describes how the highest monthly benefit amount you
ordinarily could qualify for under each type of benefit is determined.
However, the highest monthly benefit amount you could qualify for may
not be the amount that you actually are paid each month. In a particular
month, your benefit amount may be reduced or not paid at all. Under some
circumstances, your benefit amount may be increased. The most common
reasons for a change in the amount of your benefit payments are listed
below:
(a) Reductions based on age or earnings. As explained in
Secs. 404.410 through 404.413, your old-age, wife's, husband's, widow's,
or widower's benefits may be reduced if you choose to receive them
before age 65. Also, as explained in

[[Page 79]]

Sec. Sec. 404.415 through 404.417, deductions may be made from your
benefits if your earnings or the insured person's earnings go over
certain limits.
(b) Overpayments and underpayments. Your benefits may be increased
or decreased for a time to make up for any previous overpayment or
underpayment that was made on the insured person's record. For more
information about this, see subpart F.
(c) [Reserved]
(d) Family maximum. As explained in Sec. 404.403, there is a maximum
amount set for each insured person's earnings record that limits the
total benefits payable on that record. If you are entitled to benefits
as the insured's dependent or survivor, your benefits may be reduced to
keep total benefits payable to the insured's family within these limits.
(e) Government pension offset. If you are entitled to wife's,
husband's, mother's, father's, widow's or widower's benefits and receive
a Government pension for work that was not covered under social
security, your benefits may be reduced by the amount of that pension.
Special age 72 payments are also reduced by the amount of a Government
pension. For more information about this, see Sec. 404.408(a) which
covers benefits and Sec. 404.384(c) which covers special age 72
payments.
(f) Rounding. After all other deductions or reductions, any monthly
benefit which is not a multiple of $1 is reduced to the next lower
multiple of $1.

[44 FR 34481, June 15, 1979, as amended at 48 FR 46148, Oct. 11, 1983]

Sec. 404.305 When you may not be entitled to benefits.

In addition to the situations described in Sec. 404.304 when you may
not receive a benefit payment, there are special circumstances when you
may not be entitled to benefits. These circumstances are--
(a) Waiver of benefits. If you have waived benefits and been granted
a tax exemption on religious grounds as described in Secs. 404.1039 and
404.1075, no one may become entitled to any benefits or payments on your
earnings record and you may not be entitled to benefits on anyone else's
earnings record; and
(b) Person's death caused by an intentional act. You may not become
entitled to or continue to receive any survivor's benefits or payments
on the earnings record of any person, or receive any underpayment due a
person, if you were convicted of a felony or an act in the nature of a
felony of intentionally causing that person's death. If you were subject
to the juvenile justice system, you may not become entitled to or
continue to receive survivor's benefits or payments on the earnings
record of any person, or receive any underpayment due a person, if you
were found by a court of competent jurisdiction to have intentionally
caused that person's death by committing an act which, if committed by
an adult, would have been considered a felony or an act in the nature of
a felony.

[44 FR 34481, June 15, 1979, as amended at 47 FR 42098, Sept. 24, 1982;
52 FR 19136, May 21, 1987, 52 FR 21410, June 5, 1987; 58 FR 64888, Dec.
10, 1993]

Old-Age and Disability Benefits

Sec. 404.310 Who is entitled to old-age benefits.

You are entitled to old-age benefits if--
(a) You are at least 62 years old;
(b) You have enough social security earnings to be fully insured as
defined in Secs. 404.110 through 404.115; and
(c) You apply; or you are entitled to disability benefits up to the
month you become 65 years old. At age 65, your disability benefits
automatically become old-age benefits.

[44 FR 34481, June 15, 1979, as amended at 51 FR 10616, Mar. 28, 1986]

Sec. 404.311 When entitlement to old-age benefits begins and ends.

(a) You are entitled to old-age benefits at age 65 beginning with
the first month covered by your application in which you meet all the
requirements for entitlement.
(b) You are entitled to old-age benefits if you have attained age
62, but are under age 65, beginning with the first month covered by your
application throughout which you meet all the requirements for
entitlement.

[[Page 80]]

[48 FR 21926, May 16, 1983]

Sec. 404.312 Old-age benefit amounts.

(a) If your old-age benefits begin at age 65, your monthly benefit
is equal to the primary insurance amount.
(b) If your old-age benefits begin after you become 65 years old,
your monthly benefit is your primary insurance amount plus an increase
for retiring after age 65. See Sec. 404.313 for a description of these
increases.
(c) If your old-age benefits begin before you become 65 years old,
your monthly benefit amount is the primary insurance amount minus a
reduction for each month you are entitled before you become 65 years
old. These reductions are described in Secs. 404.410 through 404.413.

[44 FR 34481, June 15, 1979, as amended at 51 FR 12604, Apr. 14, 1986]

Sec. 404.313 Using delayed retirement credit to increase old-age benefit amount.

(a) General. (1) If you do not receive old-age benefits for the
month you reach age 65 (retirement age) or for any later month before
the month in which you reach age 70 (72 before 1984), you may earn
delayed retirement credits which will increase your benefit amount when
you retire. You earn delayed retirement credits for each of those months
for which you are fully insured and are eligible for but do not receive
old-age benefits, either because of your work or earnings, or because
you have not applied for benefits. If you were entitled to old-age
benefits before age 65 you may still earn delayed retirement credit for
months beginning with age 65 in which your benefits were reduced to zero
because of your work or earnings.
(2) Retirement age is the age at which entitlement to full benefits
may begin and is the age at which you may begin to earn delayed
retirement credits. Age 65 is the retirement age for workers who reach
that age before the year 2003. For workers who reach age 65 after 2002,
retirement age will gradually increase from 65 to 67, depending on each
person's date of birth.
(b) How we determine delayed retirement credits--(1) General. The
amount of the delayed retirement credit depends on the year you reach
retirement age, and the number of months you are eligible for and do not
receive old-age benefits from retirement age to age 70 (72 before 1984).
We total these months, which need not be consecutive, multiply the total
by the applicable percent as provided in paragraphs (b)(2), (3), and (4)
of this section, multiply your benefit amount by this product, and round
to the next lowest multiple of $0.10 if the answer is not already a
multiple of $0.10. The result is your delayed retirement credit which we
add to your benefit amount. The supplementary medical insurance premium,
if any, is then deducted and the result is rounded to the next lowest
multiple of $1.00 if it is not already a multiple of $1.00.
(2) Before 1982. If you reach age 65 before 1982, your delayed
retirement credit equals one-twelfth of one percent of your benefit
amount times the number of months after 1970 in which you are age 65 or
older and for which you are eligible but do not receive old-age
benefits.
(3) After 1981 and before 1990. If you reach age 65 after 1981 and
before 1990, your delayed retirement credit equals one-fourth of one
percent of your monthly benefit amount times the number of months in
which you are age 65 or older and for which you are eligible but do not
receive old-age benefits.
(4) Beginning with 1990. If you reach age 65 in 1990 or later, the
rate of the delayed retirement credit (i.e., one-fourth of one percent
as stated in paragraph (b)(3) of this section) is increased by one-
twenty-fourth of one percent in each even year through 2008. Thus,
depending on when you reach age 65, your delayed retirement credit
percent will be as follows:

------------------------------------------------------------------------
Delayed retirement credit
Year you reach age 65 percent
------------------------------------------------------------------------
1990................................... \7/24\ of 1 percent.
1991................................... \7/24\ of 1 percent.
1992................................... \1/3\ of 1 percent.
1993................................... \1/3\ of 1 percent.
1994................................... \3/8\ of 1 percent.
1995................................... \3/8\ of 1 percent.
1996................................... \5/12\ of 1 percent.

[[Page 81]]

1997................................... \5/12\ of 1 percent.
1998................................... \11/24\ of 1 percent.
1999................................... \11/24\ of 1 percent.
2000................................... \1/2\ of 1 percent.
2001................................... \1/2\ of 1 percent.
2002................................... \13/24\ of 1 percent.
2003................................... \13/24\ of 1 percent.
2004................................... \7/12\ of 1 percent.
2005................................... \7/12\ of 1 percent.
2006................................... \5/8\ of 1 percent.
2007................................... \5/8\ of 1 percent.
2008 and later......................... \2/3\ of 1 percent.
------------------------------------------------------------------------

Example. Alan was qualified for old-age benefits when he reached age
65 in January 1983, but decided not to apply for old-age benefits
immediately because he was still working. When he became age 66 in
January 1984, he stopped working and applied for these benefits
beginning with that month. Based on his earnings, his primary insurance
amount was $226.60, and his monthly old-age benefit after deducting his
supplemental medical insurance premium was $211.00 ($226.60 minus $15.50
SMI premium equals $211.10, rounded to $211.00), if no delayed
retirement credits were added. However, he did not receive benefits for
the 12 months from the month in which he became 65 (January 1983) until
the first month in which he stopped working (January 1984). Therefore,
his monthly old-age benefit of $226.60 was increased by three percent
(one-quarter of one percent times 12 months) to yield a total $233.39,
which rounded to the next lower multiple of $0.10 is $233.30. After
deducting the SMI premium and rounding to the next lower multiple of $1,
the benefit amount is $217.00.

(c) Effective date of delayed retirement credit. If you are entitled
to benefits, we examine our records after the end of each calendar year
to determine whether you have earned the delayed retirement credit
(i.e., whether there were months in which you were fully insured and
eligible for benefits, but did not receive them). Any increase in your
benefit amount due to the delayed retirement credit is effective
beginning with January of the year after the year the credit is earned.
If you are age 65 or older and eligible for old-age benefits but have
not applied, we compute the delayed retirement credit for the year(s)
before you applied and pay it to you as part of your first benefit
check. The delayed retirement credit for the year you applied and later
years is added to your benefits beginning with the following January.
However, in either case, in the year in which you attain age 70 (72
before 1984), we compute the credit through the month before the month
you reach that age and add it to your benefit amount beginning with that
month.
(d) Delayed retirement credit and special minimum primary insurance
amounts. We do not add any delayed retirement credit to your old-age
benefit if your benefit is based on the special minimum primary
insurance amount described in Sec. 404.260. We add the delayed
retirement credit only to old-age benefits based on your regular primary
insurance amount, i.e., as computed under one of the other provisions of
subpart C of this part. If your benefit based on the regular primary
insurance amount plus your delayed retirement credit is higher than the
benefit based on your special minimum primary insurance amount, we pay
the higher amount to you. However, if the special minimum primary
insurance amount is higher than the regular primary insurance amount
without the delayed retirement credit, we use the special minimum
primary insurance amount to determine the family maximum and the
benefits of others entitled on your earnings record.
(e) Effect of delayed retirement credit on other benefits--(1)
Surviving spouse or surviving divorced spouse. If you earned delayed
retirement credits during your lifetime, we compute your surviving
spouse's or surviving divorced spouse's benefit based on your regular
primary insurance amount plus the amount of the delayed retirement
credit. All delayed retirement credits, including credits in the year of
death, can be used in computing your surviving spouse's or surviving
divorced spouse's benefit beginning with the month of death. We compute
the delayed retirement credit up to, but not including, the month of
death.
(2) Other family members. We do not use your delayed retirement
credits to increase the benefits of other family members entitled on
your earnings record.
(3) Family maximum. The delayed retirement credits are added to your
benefit after we compute the family maximum. However, your delayed
retirement credits which are used to compute your surviving spouse's or
surviving divorced spouse's benefit are added

[[Page 82]]

to the spouse's benefits before we reduce for the family maximum.

[51 FR 12605, Apr. 14, 1986]

Sec. 404.315 Who is entitled to disability benefits.

(a) General. You are entitled to disability benefits while disabled
before age 65 if--
(1) You have enough social security earnings to be insured for
disability, as described in Sec. 404.130;
(2) You apply;
(3) You have a disability, as defined in Sec. 404.1505, or you are
not disabled, but you had a disability that ended within the 12-month
period before the month you applied; and
(4) You have been disabled for 5 full consecutive months. This 5-
month waiting period begins with a month in which you were both insured
for disability and disabled. Your waiting period can begin no earlier
than the 17th month before the month you apply--no matter how long you
were disabled before then. No waiting period is required if you were
previously entitled to disability benefits or to a period of disability
under Sec. 404.320 any time within 5 years of the month you again became
disabled.
(b) Prohibition against reentitlement to disability benefits if drug
addiction or alcoholism is a contributing factor material to the
determination of disability. You cannot be entitled to a period of
disability payments if drug addiction or alcoholism is a contributing
factor material to the determination of disability and your earlier
entitlement to disability benefits on the same basis terminated after
you received benefits for 36 months during which treatment was
available.

[44 FR 34481, June 15, 1979, as amended at 48 FR 21930, May 16, 1983; 51
FR 10616, Mar. 28, 1986; 51 FR 16166, May 1, 1986; 53 FR 43681, Oct. 28,
1988; 57 FR 30119, July 8, 1992; 60 FR 8145, Feb. 10, 1995]

Sec. 404.316 When entitlement to disability benefits begins and ends.

(a) You are entitled to disability benefits beginning with the first
month covered by your application in which you meet all the other
requirements for entitlement. If a waiting period is required, your
benefits cannot begin earlier than the first month following that
period.
(b) Your entitlement to disability benefits ends with the earliest
of these months:
(1) The month before the month of your death;
(2) The month before the month you become 65 years old (at age 65
your disability benefits will be automatically changed to old-age
benefits);
(3) The second month after the month in which your disability ends
as provided in Sec. 404.1594(b)(1), unless continued subject to
paragraph (c); or (4) subject to the provisions of paragraph (d) of this
section, the month before your termination month (Sec. 404.325).
(c)(1) Your benefits, and those of your dependents, may be continued
after your impairment is no longer disabling if--
(i) Your disability did not end before December 1980, the effective
date of this provision of the law;
(ii) You are participating in an appropriate program of vocational
rehabilitation, that is, one that has been approved under a State plan
approved under title I of the Rehabilitation Act of 1973 and which meets
the requirements outlined in 34 CFR part 361 for a rehabilitation
program;
(iii) You began the program before your disability ended; and
(iv) We have determined that your completion of the program, or your
continuation in the program for a specified period of time, will
significantly increase the likelihood that you will not have to return
to the disability benefit rolls.

Example: While under a disability from a severe back impairment,
``A'' begins a vocational rehabilitation program under the direction of
a State vocational rehabilitation agency with a vocational goal of
jewelry repairman. ``A'' is 50 years old, has a high school education,
and worked as a route salesman for a bread company for 6 years before
becoming disabled. Before ``A'' completes his training, his disability
status is reviewed and a determination is made that he is able to do
light work. Considering his age, education and work experience, ``A'' is
no longer disabled. However, if ``A'' is able to work as a jewelry
repairman, he will be considered able to engage in substantial gainful
activity even if he can do only sedentary work. Therefore, it is
determined that ``A's'' completion of the vocational rehabilitation

[[Page 83]]

program will significantly increase the likelihood that he will be
permanently removed from the disability rolls. ``A'' will continue to
receive payments until he completes or stops his program, or until it is
determined that continued participation will no longer significantly
increase the likelihood of permanent removal from the disability rolls.

(2) Your benefits generally will be stopped with the month--
(i) You complete the program;
(ii) You stop participating in the program for any reason; or
(iii) We determine that your continuing participation in the program
will no longer significantly increase the likelihood that you will be
permanently removed from the disability benefit rolls.
Exception: In no case will your benefits be stopped with a month
earlier than the second month after the month your disability ends.
(d) If, after November 1980, you have a disabling impairment
(Sec. 404.1511), you will be paid benefits for all months in which you
do not do substantial gainful activity during the reentitlement period
(Sec. 404.1592a) following the end of your trial work period
(Sec. 404.1592). If you are unable to do substantial gainful activity in
the first month following the reentitlement period, we will pay you
benefits until you are able to do substantial gainful activity.
(Earnings during your trial work period do not affect the payment of
your benefit.) You will also be paid benefits for the first month after
the trial work period in which you do substantial gainful activity and
the two succeeding months, whether or not you do substantial gainful
activity during those succeeding months. After those three months, you
cannot be paid benefits for any months in which you do substantial
gainful activity.
(e) If drug addiction or alcoholism is a contributing factor
material to the determination of disability as described in
Sec. 404.1535, you may receive disability benefits on that basis for no
more than 36 months regardless of the number of entitlement periods you
may have. Not included in these 36 months are months in which treatment
for your drug addiction or alcoholism is not available, months before
March 1995, and months for which your benefit payments were suspended
for any reason. Benefits to your dependents may continue after the 36
months of benefits if, but for the operation of this paragraph, you
would otherwise be entitled to benefits based on disability. The 36-
month limit is no longer effective for benefits for months beginning
after September 2004.
(f) If drug addiction or alcoholism is a contributing factor
material to the determination of disability as described in
Sec. 404.1535 and your disability benefits are suspended for 12
consecutive months because of your failure to comply with treatment
requirements, your disability benefits will be terminated effective the
first month after such 12-month period. Benefits to your dependents may
continue after the 12-month period if, but for the operation of this
paragraph, you would otherwise be entitled to benefits based on
disability.

[44 FR 34481, June 15, 1979, as amended at 47 FR 31542, July 21, 1982;
47 FR 52693, Nov. 23, 1982; 49 FR 22270, May 29, 1984; 51 FR 17617, May
14, 1986; 60 FR 8145, Feb. 10, 1995]

Sec. 404.317 Disability benefit amounts.

Your monthly benefit is equal to the primary insurance amount. This
amount is computed under the rules in subpart C as if it were an old-age
benefit, and as if you were 62 years old at the beginning of the 5-month
waiting period mentioned in Sec. 404.315(d). If the 5-month waiting
period is not required because of your previous entitlement, your
primary insurance amount is figured as if you were 62 years old when you
become entitled to benefits this time. Your monthly benefit amount may
be reduced if you receive workmen's compensation payments before you
become 62 years old as described in Sec. 404.408. Your benefits may also
be reduced if you were entitled to other retirement-age benefits before
you became 65 years old.

Sec. 404.320 Who is entitled to a period of disability.

(a) General. A period of disability is a continuous period of time
during which you are disabled. If you become disabled, you may apply to
have our records show how long your disability lasts. You may do this
even if you do not qualify for disability benefits. If we

[[Page 84]]

establish a period of disability for you, the months in that period of
time will not be counted in figuring your average earnings. If benefits
payable on your earnings record would be denied or reduced because of a
period of disability, the period of disability will not be taken into
consideration.
(b) Who is entitled. You are entitled to a period of disability if
you meet all the following conditions:
(1) You have or had a disability as defined in Sec. 404.1505.
(2) You are insured for disability, as defined in Sec. 404.130 in
the calendar quarter in which you became disabled, or in a later
calendar quarter in which you were disabled.
(3) You file an application while disabled, or no later than 12
months after the month in which your period of disability ended. If you
were unable to apply within the 12-month period after your period of
disability ended because of a physical or mental condition as described
in Sec. 404.322, you may apply not more than 36 months after the month
your disability ended.
(4) At least 5 consecutive months go by from the month in which your
period of disability begins and before the month in which it would end.

[44 FR 34481, June 15, 1979, as amended at 48 FR 21930, May 16, 1983; 51
FR 10616, Mar. 28, 1986]

Sec. 404.321 When a period of disability begins and ends.

(a) When a period of disability begins. Your period of disability
begins on the day your disability begins if you are insured for
disability on that day. If you are not insured for disability on that
day, your period of disability will begin on the first day of the first
calender quarter after your disability began in which you become insured
for disability. Your period of disability may not begin after you become
65 years old.
(b) When disability ended before December 1, 1980. Your period of
disability ends on the last day of the month before the month in which
you become 65 years old or, if earlier, the last day of the second month
following the month in which your disability ended.
(c) When disability ends after November 1980. Your period of
disability ends with the close of whichever of the following is the
earliest--
(1) The month before the month in which you become 65 years old;
(2) The month immediately preceding your termination month
(Sec. 404.325); or
(3) If you perform substantial gainful activity during the 15-month
period following the end of your trial work period, the last month for
which you received benefits.
(d) When drug addiction or alcoholism is a contributing factor
material to the determination of disability. (1) Your entitlement to
receive disability benefit payments ends the month following the month
in which, regardless of the number of entitlement periods you may have
had based on disability where drug addiction or alcoholism is a
contributing factor material to the determination of disability (as
described in Sec. 404.1535)--
(i) You have received a total of 36 months of disability benefits.
Not included in these 36 months are months in which treatment for your
drug addiction or alcoholism is not available, months before March 1995,
and months for which your benefits were suspended for any reason; or
(ii) Your benefits have been suspended for 12 consecutive months
because of your failure to comply with treatment requirements.
(2) For purposes other than payment of your disability benefits,
your period of disability continues until the termination month as
explained in Sec. 404.325.

[49 FR 22271, May 29, 1984, as amended at 60 FR 8145, Feb. 10, 1995]

Sec. 404.322 When you may apply for a period of disability after a delay due to a physical or mental condition.

If because of a physical or mental condition you did not apply for a
period of disability within 12 months after your period of disability
ended, you may apply not more than 36 months after the month in which
your disability ended. Your failure to apply within the 12-month time
period will be considered due to a physical or mental condition if
during this time--
(a) Your physical condition limited your activities to such an
extent that you could not complete and sign an application; or

[[Page 85]]

(b) You were mentally incompetent.

Sec. 404.325 The termination month.

If you do not have a disabling impairment, your termination month is
the third month following the month in which your impairment is not
disabling even if it occurs during the trial work period or the
reentitlement period. If you continue to have a disabling impairment and
complete 9 months of trial work, your termination month will be the
third month following the earliest month you perform substantial gainful
activity or are determined able to perform substantial gainful activity
but in no event earlier than the first month after the 15th month
following the end of your trial work period.

Example: You complete your trial work period in December 1980. You
are then working at the substantial gainful activity level and continue
to do so throughout the 15 months following completion of your trial
work period and thereafter. Your termination month will be April 1982,
which is the 16th month--that is, the first month in which you performed
substantial gainful activity after the 15th month following your trial
work period.
Example: You complete your trial work period in December 1980 but
you are not able to work at the substantial gainful activity level until
December 1982. Your termination month will be March 1983--that is, the
third month after the earliest month you perform or are determined able
to perform substantial gainful activity.

[49 FR 22271, May 29, 1984]

Benefits for Spouses and Divorced Spouses

Sec. 404.330 Who is entitled to wife's or husband's benefits.

You are entitled to benefits as the wife or husband of an insured
person who is entitled to old-age or disability benefits if--
(a) You are the insured's wife or husband based upon a relationship
described in Secs. 404.345 through 404.346 and one of the following
conditions is met:
(1) Your relationship to the insured as a wife or husband has lasted
at least 1 year. (You will be considered to meet the 1-year duration
requirement throughout the month in which the first anniversary of the
marriage occurs.)
(2) You and the insured are the natural parents of a child; or
(3) In the month before you married the insured you were entitled
to, or if you had applied and been old enough you could have been
entitled to, any of these benefits or payments: Wife's, husband's,
widow's, widower's, or parent's benefits; disabled child's benefits; or
annuity payments under the Railroad Retirement Act for widows, widowers,
parents, or children 18 years old or older;
(b) You apply;
(c) You are age 62 or older throughout a month and you meet all
other conditions of entitlement, or you are the insured's wife or
husband and have in your care (as defined in Secs. 404.348 through
404.349), throughout a month in which all other conditions of
entitlement are met, a child who is entitled to child's benefits on the
insured's earnings record and the child is either under age 16 or
disabled; and
(d) You are not entitled to an old-age or disability benefit based
upon a primary insurance amount that is equal to or larger than the full
wife's or husband's benefit.

[44 FR 34481, June 15, 1979; 44 FR 56691, Oct. 2, 1979, as amended at 45
FR 68932, Oct. 17, 1980; 48 FR 21926, May 16, 1983]

Sec. 404.331 Who is entitled to wife's or husband's benefits as a divorced spouse.

You are entitled to wife's or husband's benefits as the divorced
wife or divorced husband of an insured person who is entitled to old-age
or disability benefits if you meet the requirements of paragraphs (a)
through (e). You are entitled to these benefits even though the insured
person is not yet entitled to benefits, if the insured person is at
least age 62 and if you meet the requirements of paragraphs (a) through
(f). The requirements are that--
(a) You are the insured's divorced wife or divorced husband and--
(1) You were validly married to the insured under State law as
described in Sec. 404.345 or you were deemed to be validly married as
described in Sec. 404.346; and
(2) You were married to the insured for at least 10 years
immediately before your divorce became final;
(b) You apply;

[[Page 86]]

(c) You are not married. (For purposes of meeting this requirement,
you will be considered not to be married throughout the month in which
the divorce occurred);
(d) You are age 62 or older throughout a month in which all other
conditions of entitlement are met; and
(e) You are not entitled to an old-age or disability benefit based
upon a primary insurance amount that is equal to or larger than the full
wife's or husband's benefit.
(f) You have been divorced from the insured person for at least 2
years.

[44 FR 34481, June 15, 1979, as amended at 48 FR 21926, May 16, 1983; 51
FR 11911, Apr. 8, 1986; 58 FR 64891, Dec. 10, 1993]

Sec. 404.332 When wife's and husband's benefits begin and end.

(a) You are entitled to wife's or husband's benefits beginning with
the first month covered by your application in which you meet all the
other requirements for entitlement under Sec. 404.330 or Sec. 404.331.
However, if you are entitled as a divorced spouse before the insured
person becomes entitled, your benefits cannot begin before January 1985
based on an application filed no earlier than that month.
(b) Your entitlement to benefits ends with the month before the
month in which one of the following events first occurs:
(1) You become entitled to an old-age or disability benefit based
upon a primary insurance amount that is equal to or larger than the full
wife's or husband's benefit.
(2) You are the wife or husband and are divorced from the insured
person unless you meet the requirements for benefits as a divorced wife
or divorced husband as described in Sec. 404.331.
(3) You are the divorced wife or divorced husband and you marry
someone, other than the insured who is entitled to old-age benefits,
unless that other person is someone entitled to benefits as a wife,
husband, widow, widower, father, mother, parent or disabled child. Your
benefits will end if you remarry the insured who is not yet entitled to
old-age benefits.
(4) If you are under 62 years old, the child who was in your care
becomes age 16 (unless disabled) or is otherwise no longer entitled to
child's benefits. (See paragraph (c) of this section if you were
entitled to wife's or husband's benefits for August 1981 on the basis of
having a child in care.)
(5) The insured person dies or is no longer entitled to old age or
disability benefits. Exception: Your benefits will continue if the
insured person was entitled to disability benefits based on a finding
that drug addiction or alcoholism was a contributing factor material to
the determination of his or her disability (as described in
Sec. 404.1535), the insured person's benefits ended after 36 months of
benefits (see Sec. 404.316(e)) or 12 consecutive months of suspension
for noncompliance with treatment (see Sec. 404.316(f)), and but for the
operation of these provisions, the insured person would remain entitled
to benefits based on disability.
(6) If your benefits are based upon a deemed valid marriage and you
have not divorced the insured, you marry someone other than the insured.
(7) You die.
(8) You became entitled as the divorced wife or the divorced husband
before the insured person became entitled, but he or she is no longer
insured.
(c) If you were entitled to wife's or husband's benefits for August
1981 on the basis of having a child in care, your entitlement will
continue until September 1983, until the child reaches 18 (unless
disabled) or is otherwise no longer entitled to child's benefits, or
until one of the events described in paragraph (b)(1), (2), (3), (5),
(6) or (7) of this section occurs, whichever is earliest.

[44 FR 34481, June 15, 1979, as amended at 48 FR 21926, May 16, 1983; 49
FR 24115, June 12, 1984; 51 FR 11911, Apr. 8, 1986; 58 FR 64891, Dec.
10, 1993; 60 FR 8145, Feb. 10, 1995]

Sec. 404.333 Wife's and husband's benefit amounts.

Your wife's or husband's monthly benefit is equal to one-half the
insured person's primary insurance amount. If you are entitled as a
divorced wife or as a divorced husband before the insured person becomes
entitled, we will compute the primary insurance amount as if he or she
became entitled to old-age benefits in the first month you are entitled
as a divorced wife or

[[Page 87]]

as a divorced husband. The amount of your monthly benefit may change as
explained in Sec. 404.304.

[51 FR 11912, Apr. 8, 1986]

Sec. 404.335 Who is entitled to widow's or widower's benefits.

You may be entitled to benefits as the widow or widower of a person
who was fully insured when he or she died. You are entitled to these
benefits if--
(a) You are the insured's widow or widower based upon a relationship
described in Secs. 404.345 through 404.346, and one of the following
conditions is met:
(1) Your relationship to the insured as a wife or husband lasted for
at least 9 months immediately before the insured died.
(2) Your relationship to the insured as a wife or husband did not
last 9 months before the insured died, but at the time of your marriage
the insured was reasonably expected to live for 9 months, and--
(i) The death of the insured was accidental. The death is accidental
if it was caused by an event that the insured did not expect; it was the
result of bodily injuries received from violent and external causes; and
as a direct result of these injuries, death occurred not later than 3
months after the day on which the bodily injuries were received. An
intentional and voluntary suicide will not be considered an accidental
death;
(ii) The death of the insured occurred in the line of duty while he
or she was serving on active duty as a member of the uniformed services
as defined in Sec. 404.1019; or
(iii) You had been previously married to the insured for at least 9
months.
(3) You and the insured were the natural parents of a child; or you
were married to the insured when either of you adopted the other's child
or when both of you adopted a child who was then under 18 years old.
(4) In the month before you married the insured, you were entitled
to or, if you had applied and had been old enough, could have been
entitled to any of these benefits or payments: widow's, widower's,
father's (based on the record of a fully insured individual), mother's
(based on the record of a fully insured individual), wife's, husband's,
parent's, or disabled child's benefits; or annuity payments under the
Railroad Retirement Act for widows, widowers, parents, or children age
18 or older;
(b) You apply, except that you need not apply again if--
(1) You are entitled to wife's or husband's benefits for the month
before the month in which the insured dies and you are 65 years old or
you are not entitled to either old-age or disability benefits;
(2) You are entitled to mother's or father's benefits for the month
before the month in which you become 65 years old;
(3) You are entitled to wife's or husband's benefits and to either
old-age or disability benefits in the month before the month of the
insured's death, you are under age 65 in the month of death, and you
have filed a Certificate of Election in which you elect to receive
reduced widow's or widower's benefits; or
(4) You applied in 1990 for widow's or widower's benefits based on
disability, and:
(i) You were entitled to disability insurance benefits for December
1990, or eligible for supplemental security income or federally
administered State supplementary payments, as specified in subparts B
and T of part 416 of this chapter, respectively, for January 1991; and
(ii) You were found not disabled for any month based on the
definition of disability in Secs. 404.1577 and 404.1578, as in effect
prior to January 1991, but would have been entitled if the standard in
Sec. 404.1505(a) had applied. (This exception to the requirement for
filing an application is effective only with respect to benefits payable
for months after December 1990.);
(c) You are at least 60 years old; or you are at least 50 years old
and have a disability as defined in Sec. 404.1505 and--
(1) Your disability started not later than 7 years after the insured
died or 7 years after you were last entitled to mother's or father's
benefits or to widow's or widower's benefits based upon a disability,
whichever occurred last;
(2) Your disability continued during a waiting period of 5 full
consecutive months, unless months beginning with

[[Page 88]]

the first month of eligibility for supplemental security income or
federally administered State supplementary payments are counted, as
explained in paragraph (c)(3) of this section. The waiting period may
begin no earlier than the 17th month before you applied; the fifth month
before the insured died; or if you were previously entitled to mother's,
father's, widow's, or widower's benefits the 5th month before your
entitlement to benefits ended. If you were previously entitled to
widow's or widower's benefits based upon a disability, the waiting
period is not required;
(3) For monthly benefits payable for months after December 1990, if
you were or have been eligible for supplemental security income or
federally administered State supplementary payments, as specified in
subparts B and T of part 416 of this chapter, respectively, your
disability does not have to have continued through a separate, full 5-
month waiting period before you may begin receiving benefits. We will
include as months of the 5-month waiting period the months in a period
beginning with the first month you received supplemental security income
or a federally administered State supplementary payment and continuing
through all succeeding months, regardless of whether the months in the
period coincide with the months in which your waiting period would have
occurred, or whether you continued to be eligible for supplemental
security income or a federally administered State supplementary payment
after the period began, or whether you met the nondisability
requirements for entitlement to widow's or widower's benefits. However,
we will not pay you benefits under this provision for any month prior to
January 1991; and
(4) You have not previously received 36 months of payments based on
disability when drug addiction or alcoholism was a contributing factor
material to the determination of disability (as described in
Sec. 404.1535), regardless of the number of entitlement periods you may
have had, or your current application for widow(er)'s benefits is not
based on a disability where drug addiction or alcoholism is a
contributing factor material to the determination of disability.
(d) You are not entitled to an old-age benefit that is equal to or
larger than the insured person's primary insurance amount; and
(e) You are unmarried, unless--
(1) You remarried after you became 60 years old; or
(2) For benefits for months after 1983--
(i) You are now age 60 or older;
(ii) You remarried after attaining age 50 but before attaining age
60; and
(iii) At the time of the remarriage, you were entitled to
widow(er)'s benefits as a disabled widow(er); or
(3) For benefits for months after 1983--
(i) You are now at least age 50 but not yet age 60;
(ii) You remarried after attaining age 50; and
(iii) You met the disability requirements in paragraph (c) of this
section at the time of your remarriage (i.e., your disability began
within the specified time and before your remarriage).

[44 FR 34481, June 15, 1979, as amended at 47 FR 12162, Mar. 22, 1982;
49 FR 24115, June 12, 1984; 51 FR 4482, Feb. 5, 1986; 51 FR 10616, Mar.
28, 1986; 55 FR 25825, June 25, 1990; 57 FR 30119, July 8, 1992; 59 FR
14747, Mar. 30, 1994; 60 FR 8145, Feb. 10, 1995]

Sec. 404.336 Who is entitled to widow's or widower's benefits as a surviving divorced spouse.

You may be entitled to widow's or widower's benefits as the
surviving divorced wife or the surviving divorced husband of a person
who was fully insured when he or she died. You are entitled to these
benefits if--
(a) You are the insured's surviving divorced wife or surviving
divorced husband and--
(1) You were validly married to the insured under State law as
described in Sec. 404.345 or are deemed to be validly married as
described in Sec. 404.346; and
(2) You were married to the insured for at least 10 years
immediately before your divorce became final;
(b) You apply, except that you need not apply again if--
(1) You are entitled to wife's or husband's benefits for the month
before the month in which the insured dies and you are 65 years old or
you are not

[[Page 89]]

entitled to old-age or disability benefits;
(2) You are entitled to mother's or father's benefits for the month
before the month in which you become 65 years old;
(3) You are entitled to wife's or husband's benefits and to either
old-age or disability benefits in the month before the month of the
insured's death, you are under age 65 in the month of death, and you
have filed a Certificate of Election in which you elect to receive
reduced widow's or widower's benefits; or
(4) You applied in 1990 for widow's or widower's benefits based on
disability, and:
(i) You were entitled to disability insurance benefits for December
1990, or eligible for supplemental security income or federally
administered State supplementary payments, as specified in subparts B
and T of part 416 of this chapter, respectively, for January 1991; and
(ii) You were found not disabled for any month based on the
definition of disability in Secs. 404.1577 and 404.1578, as in effect
prior to January 1991, but would have been entitled if the standard in
Sec. 404.1505(a) had applied. (This exception to the requirement for
filing an application is effective only with respect to benefits payable
for months after December 1990.);
(c) You are at least 60 years old; or you are at least 50 years old
and have a disability as defined in Sec. 404.1505 and--
(1) Your disability started not later than 7 years after the insured
died or 7 years after you were last entitled to mother's or father's
benefits or to widow's or widower's benefits based upon a disability,
whichever occurred last;
(2) Your disability continued during a waiting period of 5 full
consecutive months, unless months beginning with the first month of
eligibility for supplemental security income or federally administered
State supplementary payments are counted, as explained in paragraph
(c)(3) of this section. This waiting period may begin no earlier than
the 17th month before you applied; the fifth month before the insured
died; or if you were previously entitled to mother's, father's, widow's,
or widower's benefits, the 5th month before your previous entitlement to
benefits ended. If you were previously entitled to widow's or widower's
benefits based upon a disability, the waiting period is not required;
and
(3) For monthly benefits payable for months after December 1990, if
you were or have been eligible for supplemental security income or a
federally administered State supplementary payments, as specified in
subparts B and T of part 416 of this chapter, respectively, your
disability does not have to have continued through a separate, full 5-
month waiting period before you may begin receiving benefits. We will
include as months of the 5-month waiting period the months in a period
beginning with the first month you received supplemental security income
or a federally administered State supplementary payment and continuing
through all succeeding months, regardless of whether the months in the
period coincide with the months in which your waiting period would have
occurred, or whether you continued to be eligible for supplemental
security income or a federally administered State supplementary payment
after the period began, or whether you met the nondisability
requirements for entitlement to widow's or widower's benefits. However,
we will not pay you benefits under this provision for any month prior to
January 1991;
(d) You are not entitled to an old-age benefit that is equal to or
larger than the insured person's primary insurance amount; and
(e) You are unmarried, unless for benefits for months after 1983--
(1) You remarried after you became 60 years old; or
(2)(i) You are now age 60 or older;
(ii) You remarried after attaining age 50 but before attaining age
60; and
(iii) At the time of the remarriage, you were entitled to
widow(er)'s benefits as a disabled widow(er); or
(3)(i) You are now at least age 50 but not yet age 60;
(ii) You remarried after attaining age 50; and
(iii) You met the disability requirements in paragraph (c) of this
section at the time of your remarriage (i.e.,

[[Page 90]]

your disability began within the specified time and before your
remarriage).

[44 FR 34481, June 15, 1979, as amended at 47 FR 12162, Mar. 22, 1982;
51 FR 4482, Feb. 5, 1986; 55 FR 25300, June 21, 1990; 55 FR 25825, June
25, 1990; 57 FR 30119, July 8, 1992; 58 FR 64891, Dec. 10, 1993]

Sec. 404.337 When widow's and widower's benefits begin and end.

(a) You are entitled to widow's or widower's benefits under
Sec. 404.335 or Sec. 404.336 beginning with the first month covered by
your application in which you meet all the other requirements for
entitlement.
(b) Your entitlement to benefits ends at the earliest of the
following times:
(1) The month before the month in which you become entitled to an
old-age benefit that is equal to or larger than the insured's primary
insurance amount.
(2) If your widow's or widower's benefit is based upon a disability,
the second month after the month your disability ends or, where
disability ends on or after December 1, 1980, the month before your
termination month (Sec. 404.325). However payments are subject to the
provisions of paragraphs (c) and (d) of this section. You may remain
eligible for payment of benefits if you became 65 years old before your
termination month and you met the other requirements for widow's or
widower's benefits. If your widow's or widower's benefit is based on a
finding that drug addiction or alcoholism is a contributing factor
material to the determination of disability as described in
Sec. 404.1535, your entitlement to benefits will terminate the month
after the 12th consecutive month of suspension for noncompliance with
treatment or after 36 months of benefits on that basis when treatment is
available regardless of the number of entitlement periods you may have
had, unless you are otherwise disabled without regard to drug addiction
or alcoholism.
(3) The month before the month in which you die.
(c)(1) Your benefits may be continued after your impairment is no
longer disabling if--
(i) Your disability did not end before December 1980, the effective
date of this provision of the law;
(ii) You are participating in an appropriate program of vocational
rehabilitation as described in Sec. 404.316(c)(1)(ii);
(iii) You began the program before your disability ended; and
(iv) We have determined that your completion of the program, or your
continuation in the program for a specified period of time, will
significantly increase the likelihood that you will not have to return
to the disability benefit rolls.
(2) Your benefits generally will be stopped with the month--
(i) You complete the program;
(ii) You stop participating in the program for any reason; or
(iii) We determine that your continuing participation in the program
will no longer significantly increase the likelihood that you will be
permanently removed from the disability benefit rolls.

Exception: In no case will your benefits be stopped with a month earlier
than the second month after the month your disability ends.
(d) If, after November 1980, you have a disabling impairment
(Sec. 404.1511), you will be paid benefits for all months in which you
do not do substantial gainful activity during the reentitlement period
(Sec. 404.1592a) following the end of your trial work period
(Sec. 404.1592). If you are unable to do substantial gainful activity in
the first month following the reentitlement period, we will pay you
benefits until you are able to do substantial gainful activity.
(Earnings during your trial work period do not affect the payment of
your benefits.) You will also be paid benefits for the first month after
the trial work period in which you do substantial gainful activity and
the two succeeding months, whether or not you do substantial gainful
activity during those succeeding months. After those three months, you
cannot be paid benefits for any months in which you do substantial
gainful activity.

[44 FR 34481, June 15, 1979, as amended at 47 FR 31542, July 21, 1982;
49 FR 22271, May 29, 1984; 51 FR 4482, Feb. 5, 1986; 51 FR 17617, May
14, 1986; 58 FR 64891, Dec. 10, 1993; 60 FR 8146, Feb. 10, 1995]

[[Page 91]]

Sec. 404.338 Widow's and widower's benefits amounts.

Your widow's or widower's monthly benefit is equal to the insured
person's primary insurance amount. If the insured person died before
reaching age 62 and you are first eligible after 1984, we may compute a
special primary insurance amount for the purpose of determining the
amount of your monthly benefit (see Sec. 404.212(b)). We may increase
your monthly benefit amount if the insured person earned delayed
retirement credit after age 65 by working or by delaying filing for
benefits (see Sec. 404.313). The amount of your monthly benefit may
change as explained in Sec. 404.304. In addition, your monthly benefit
will be reduced if the insured person had been entitled to old-age
benefits that were reduced for age because he or she chose to receive
them before becoming 65 years old. In this instance, your benefit is
reduced, if it would otherwise be higher, to either the amount the
insured would have been entitled to if still alive or 82\1/2\ percent of
his or her primary insurance amount, whichever is larger.

[44 FR 34481, June 15, 1979, as amended at 51 FR 4482, Feb. 5, 1986]

Sec. 404.339 Who is entitled to mother's or father's benefits.

You may be entitled as the widow or widower to mother's or father's
benefits on the earnings record of someone who was fully or currently
insured when he or she died. You are entitled to these benefits if--
(a) You are the widow or widower of the insured and meet the
conditions described in Sec. 404.335(a)(1);
(b) You apply for these benefits; or you were entitled to wife's
benefits for the month before the insured died;
(c) You are unmarried;
(d) You are not entitled to widow's or widower's benefits, or to an
old-age benefit that is equal to or larger than the full mother's or
father's benefit; and
(e) You have in your care the insured's child who is entitled to
child's benefits and he or she is under 16 years old or is disabled.
Sections 404.348 and 404.349 describe when a child is in your care.

[44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983]

Sec. 404.340 Who is entitled to mother's or father's benefits as a surviving divorced spouse.

You may be entitled to mother's or father's benefits as the suviving
divorced wife or the surviving divorced husband of someone who was fully
or currently insured when he or she died. You are entitled to these
benefits if--
(a) You were validly married to the insured under State law as
described in Sec. 404.345 or you were deemed to be validly married as
described in Sec. 404.346 but the marriage ended in a final divorce
and--
(1) You are the mother or father of the insured's child; or
(2) You were married to the insured when either of you adopted the
other's child or when both of you adopted a child and the child was then
under 18 years old;
(b) You apply for these benefits; or you were entitled to wife's or
husband's benefits for the month before the insured died;
(c) You are unmarried;
(d) You are not entitled to widow's or widower's benefits, or to an
old-age benefit that is equal to or larger than the full mother's or
father's benefit; and
(e) You have in your care the insured's child who is under age 16 or
disabled, is your natural or adopted child, and is entitled to child's
benefits on the insured person's record. Sections 404.348 and 404.349
describe when a child is in your care.

[44 FR 34481, June 15, 1979, as amended at 45 FR 68932, Oct. 17, 1980;
48 FR 21927, May 16, 1983; 58 FR 64891, Dec. 10, 1993]

Sec. 404.341 When mother's and father's benefits begin and end.

(a) You are entitled to mother's or father's benefits beginning with
the first month covered by your application in which you meet all the
other requirements for entitlement.
(b) Your entitlement to benefits ends with the month before the
month in which one of the following events first occurs:

[[Page 92]]

(1) You become entitled to a widow's or widower's benefit or to an
old-age benefit that is equal to or larger than the full mother's or
father's benefit.
(2) The child in your care becomes age 16 and not disabled or is
otherwise no longer entitled to child's benefits. (See paragraph (c) of
this section if you were entitled to mother's or father's benefits for
August 1981.)
(3) You remarry. Your benefits will not end, however, if you marry
someone entitled to old-age, disability, wife's, husband's, widow's,
widower's, father's, mother's, parent's or disabled child's benefits.
(4) You die.
(c) If you were entitled to spouse's benefits on the basis of having
a child in care, or to mother's or father's benefits for August 1981,
your entitlement will continue until September 1983, until the child
reaches 18 (unless disabled) or is otherwise no longer entitled to
child's benefits, or until one of the events described in paragraph
(b)(1), (3), or (4) of this section occurs, whichever is earliest.

[44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983; 49
FR 24115, June 12, 1984; 58 FR 64891, Dec. 10, 1993]

Sec. 404.342 Mother's and father's benefit amounts.

Your mother's or father's monthly benefit is equal to 75 percent of
the insured person's primary insurance amount. The amount of your
monthly benefit may change as explained in Sec. 404.304.

Sec. 404.344 Your relationship by marriage to the insured.

You may be eligible for benefits if your are related to the insured
person as a wife, husband, widow, or widower. To decide your
relationship to the insured, we look first to State laws. The State laws
that we use are discussed in Sec. 404.345. If your relationship cannot
be established under State law, you may still be eligible for benefits
if your relationship as the insured's wife, husband, widow, or widower
is based upon a deemed valid marriage as described in Sec. 404.346.

Sec. 404.345 Your relationship as wife, husband, widow, or widower under State law.

To decide your relationship as the insured's wife or husband, we
look to the laws of the State where the insured had a permanent home
when you applied for wife's or husband's benefits. To decide your
relationship as the insured's widow or widower, we look to the laws of
the State where the insured had a permanent home when he or she died. If
the insured's permanent home is not or was not in one of the 50 States,
the Commonwealth of Puerto Rico, the Virgin Islands, Guam, or American
Samoa, we look to the laws of the District of Columbia. For a definition
of permanent home, see Sec. 404.303. If you and the insured were validly
married under State law at the time you apply for wife's or husband's
benefits or at the time the insured died if you apply for widow's,
widower's, mother's, or father's benefits, the relationship requirement
will be met. The relationship requirement will also be met if under
State law you would be able to inherit a wife's, husband's, widow's, or
widower's share of the insured's personal property if he or she were to
die without leaving a will.

Sec. 404.346 Your relationship as wife, husband, widow or widower based upon a deemed valid marriage.

(a) General. If your relationship as the insured's wife, husband,
widow, or widower cannot be established under State law as explained in
Sec. 404.345, you may be eligible for benefits based upon a deemed valid
marriage. You will be deemed to be the wife, husband, widow, or widower
of the insured if, in good faith, you went through a marriage ceremony
with the insured that would have resulted in a valid marriage except for
a legal impediment. A legal impediment includes only an impediment which
results because a previous marriage had not ended at the time of the
ceremony or because there was a defect in the procedure followed in
connection with the intended marriage. For example, a defect in the
procedure may be found where a marriage was performed through a
religious ceremony in a country that requires a civil ceremony for a
valid marriage. Good

[[Page 93]]

faith means that at the time of the ceremony you did not know that a
legal impediment existed, or if you did know, you thought that it would
not prevent a valid marriage.
(b) Entitlement based upon a deemed valid marriage. To be entitled
to benefits as a wife, husband, widow or widower as the result of a
deemed valid marriage, you and the insured must have been living in the
same household (see Sec. 404.347) at the time the insured died or, if
the insured is living, at the time you apply for benefits. However, a
marriage that had been deemed valid, shall continue to be deemed valid
if the insured individual and the person entitled to benefits as the
wife or husband of the insured individual are no longer living in the
same household at the time of death of the insured individual.

[44 FR 34481, June 15, 1979, as amended at 45 FR 65540, Oct. 3, 1980; 48
FR 21927, May 16, 1983; 58 FR 64892, Dec. 10, 1993]

Sec. 404.347 ``Living in the same household'' defined.

You may be eligible for benefits as a wife, husband, widow, or
widower because your relationship to the insured is based upon a deemed
valid marriage, as described in Sec. 404.346, only if you and the
insured were living in the same household at the time you apply for
wife's or husband's benefits or at the time the insured died if you
apply for widow's, widower's, mother's, or father's benefits. Living in
the same household means that you and the insured customarily lived
together as husband and wife in the same residence. You may be
considered to be living in the same household although one of you is
temporarily absent from the residence. An absence will be considered
temporary if it was due to service in the U.S. Armed Forces. An absence
of less than 6 months is also considered temporary if neither you nor
the insured were outside of the United States during this time and the
absence was due to business or employment; or to confinement in a
hospital, nursing home, other medical institution, or a penal
institution. Other absences may be considered temporary if it is shown
that you and the insured could have reasonably expected to live together
in the near future.

Sec. 404.348 When a child living with you is ``in your care''.

To become entitled to wife's benefits before you become 62 years old
or to mother's or father's benefits, you must have the insured's child
in your care. A child who has been living with you for at least 30 days
is in your care unless--
(a) The child is in active military service;
(b) The child is 16 years old or older and not disabled;
(c) The child is 16 years old or older with a mental disability, but
you do not actively supervise his or her activities and you do not make
important decisions about his or her needs, either alone or with help
from your spouse; or
(d) The child is 16 years old or older with a physical disability,
but it is not necessary for you to perform personal services for him or
her. Personal services are services such as dressing, feeding, and
managing money that the child cannot do alone because of a disability.

[44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983]

Sec. 404.349 When a child living apart from you is ``in your care''.

(a) In your care. A child living apart from you is in your care if--
(1) The child lived apart from you for not more than 6 months, or
the child's current absence from you is not expected to last over 6
months;
(2) The child is under 16 years old, you supervise his or her
activities and make important decisions about his or her needs, and one
of the following circumstances exist:
(i) The child is living apart because of school but spends at least
30 days vacation with you each year unless some event makes having the
vacation unreasonable; and if you and the child's other parent are
separated, the school looks to you for decisions about the child's
welfare;
(ii) The child is living apart because of your employment but you
make regular and substantial contributions to his or her support; see
Sec. 404.366(a) for a definition of contributions for support;
(iii) The child is living apart because of a physical disability
that the child has or that you have; or

[[Page 94]]

(3) The child is 16 years old or older, is mentally disabled, and
you supervise his or her activities, make important decisions about his
or her needs, and help in his or her upbringing and development.
(b) Not in your care. A child living apart from you is not in your
care if--
(1) The child is in active military service;
(2) The child is living with his or her other parent;
(3) The child is removed from your custody and control by a court
order;
(4) The child is 16 years old or older, is mentally competent, and
either has been living apart from you for 6 months or more or begins
living apart from you and is expected to be away for more than 6 months;
(5) You gave your right to have custody and control of the child to
someone else; or
(6) You are mentally disabled.

[44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983]

Child's Benefits

Sec. 404.350 Who is entitled to child's benefits.

(a) General. You are entitled to child's benefits on the earnings
record of an insured person who is entitled to old-age or disability
benefits or who has died if--
(1) You are the insured person's child, based upon a relationship
described in Secs. 404.355 through 404.359;
(2) You are dependent on the insured, as defined in Secs. 404.360
through 404.365;
(3) You apply;
(4) You are unmarried; and
(5) You are under age 18, you are 18 years old or older and have a
disability that began before you became 22 years old, or you are 18
years or older and qualify for benefits as a full-time student as
described in Sec. 404.367 or Sec. 404.369.
(b) Entitlement preclusion for certain disabled children. If you are
a disabled child as referred to in paragraph (a)(5) of this section, and
your disability was based on a finding that drug addiction or alcoholism
was a contributing factor material to the determination of disability
(as described in Sec. 404.1535) and your benefits ended after your
receipt of 36 months of benefits, you will not be entitled to benefits
based on disability for any month following such 36 months regardless of
the number of entitlement periods you have had if, in such following
months, drug addiction or alcoholism is a contributing factor material
to the later determination of disability (as described in
Sec. 404.1535).

[44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983; 60
FR 8146, Feb. 10, 1995]

Sec. 404.351 Who may be reentitled to child's benefits.

If your entitlement to child's benefits has ended, you may be
reentitled on the same earnings record if you have not married and if
you apply for reentitlement. Your reentitlement may begin with--
(a) The first month in which you qualify as a full-time student.
(See Secs. 404.367 and 404.369)
(b) The first month in which you are disabled, if your disability
began before you became 22 years old; or
(c) The first month you are under a disability that began before the
end of the 84th month following the month in which your benefits had
ended because an earlier disability had ended.

[44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983]

Sec. 404.352 When child's benefits begin and end.

(a) When benefits begin. (1) If the insured is deceased, you are
entitled to child's benefits beginning with the first month covered by
your application in which you meet all other requirements for
entitlement.
(2) If the insured is living, you are entitled to child's benefits
beginning with the first month covered by your application:
(i) Throughout which you meet all the other requirements for
entitlement if your first month of entitlement is September 1981 or
later; or
(ii) In which you meet all the other requirements for entitlement if
your first month of entitlement is before September 1981.
(b) Your entitlement to benefits ends with the month before the
month in which one of the following events first occurs:

[[Page 95]]

(1) You become 18 years old, unless you are disabled or a full-time
student. If you become 18 years old and you are disabled, your
entitlement to disability benefits ends with the second month following
the month in which your disability ends. If your disability ends on or
after December 1, 1980, your entitlement to disability benefits
continues, subject to the provisions of paragraphs (c) and (d) of this
section, until the month before your termination month (Sec. 404.325).
If you become 18 years old and you qualify as a full-time student who is
not disabled, your entitlement ends with the last month you are a full-
time student or, if earlier, the month before the month you became age
19 (age 22 in certain situations described in Sec. 404.369). If you
become age 19 in a month in which you have not completed the
requirements for, or received, a diploma or equivalent certificate from
an elementary or secondary school, your entitlement will end with the
month in which the quarter or semester in which you are enrolled ends if
you are required to enroll for each quarter or semester. If the school
you are attending does not have a quarter or semester system which
requires reenrollment, your benefits will end with the month you
complete the course or, if earlier, the first day of the third month
following the month in which you become 19 years old.
(2) You marry. Your benefits will not end, however, if you are age
18 or older, disabled, and you marry a person entitled to child's
benefits based on disability or person entitled to old-age, divorced
wife's, divorced husband's, widow's, widower's, mother's, father's,
parent's, or disability benefits.
(3) The insured's entitlement to old-age or disability benefits ends
for a reason other than death or the attainment of age 65. Exception:
Your benefits will continue if the insured person was entitled to
disability benefits based on a finding that drug addiction or alcoholism
was a contributing factor material to the determination of his or her
disability (as described in Sec. 404.1535), the insured person's
benefits ended after 36 months of payment (see Sec. 404.316(e)) or 12
consecutive months of suspension for noncompliance with treatment (see
Sec. 404.316(f)), and the insured person remains disabled.
(4) You die.
(c) If you are entitled to benefits as a disabled child age 18 or
over and your disability is based on a finding that drug addiction or
alcoholism was a contributing factor material to the determination of
disability (as described in Sec. 404.1535), your benefits also will
terminate under the following conditions:
(1) If your benefits have been suspended for a period of 12
consecutive months for failure to comply with treatment, your benefits
will terminate with the month following the 12 months unless you are
otherwise disabled without regard to drug addiction or alcoholism (see
Sec. 404.470(c)).
(2) If you have received 36 months of benefits on that basis when
treatment is available, regardless of the number of entitlement periods
you may have had, your benefits will terminate with the month following
such 36-month payment period unless you are otherwise disabled without
regard to drug addiction or alcoholism.
(d)(1) Your benefits may be continued after your impairment is no
longer disabling if--
(i) Your disability did not end before December 1980, the effective
date of this provision of the law;
(ii) You are participating in an appropriate program of vocational
rehabilitation as described in Sec. 404.316(c)(1)(ii);
(iii) You began the program before your disability ended; and
(iv) We have determined that your completion of the program, or your
continuation in the program for a specified period of time, will
significantly increase the likelihood that you will not have to return
to the disability benefit rolls.
(2) Your benefits generally will be stopped with the month--
(i) You complete the program;
(ii) You stop participating in the program for any reason; or
(iii) We determine that your continuing participation in the program
will no longer significantly increase the likelihood that you will be
permanently removed from the disability benefit rolls.

[[Page 96]]

Exception: In no case will your benefits be stopped with a month earlier
than the second month after the month your disability ends.
(e) If, after November 1980, you have a disabling impairment
(Sec. 404.1511), you will be paid benefits for all months in which you
do not do substantial gainful activity during the reentitlement period
(Sec. 404.1592a) following the end of your trial work period
(Sec. 404.1592). If you are unable to do substantial gainful activity in
the first month following the reentitlement period, we will pay you
benefits until you are able to do substantial gainful activity.
(Earnings during your trial work period do not affect the payment of
your benefits during that period.) You will also be paid benefits for
the first month after the trial work period in which you do substantial
gainful activity and the two succeeding months, whether or not you do
substantial gainful activity during those succeeding months. After those
three months, you cannot be paid benefits for any months in which you do
substantial gainful activity.

[44 FR 34481, June 15, 1979, as amended at 47 FR 31543, July 21, 1982;
48 FR 21927, May 16, 1983; 49 FR 22271, May 29, 1984; 49 FR 24115, June
12, 1984; 51 FR 17617, May 14, 1987; 60 FR 8146, Feb. 10, 1995]

Sec. 404.353 Child's benefit amounts.

(a) General. Your child's monthly benefit is equal to one-half of
the insured person's primary insurance amount if he or she is alive and
three-fourths of the primary insurance amount if he or she has died. The
amount of your monthly benefit may change as explained in Secs. 404.304
and 404.369.
(b) Entitlement to more than one benefit. If you are entitled to a
child's benefit on more than one person's earnings record, you will
ordinarily receive only the benefit payable on the record with the
highest primary insurance amount. If your benefit before any reduction
would be larger on an earnings record with a lower primary insurance
amount and no other person entitled to benefits on any earnings record
would receive a smaller benefit as a result of your receiving benefits
on the record with the lower primary insurance amount, you will receive
benefits on that record. See Sec. 404.407(d) for a further explanation.
If you are entitled to a child's benefit and to other dependent's or
survivor's benefits, you can receive only the highest of the benefits.

[44 FR 34481, June 15, 1979; 44 FR 56691, Oct. 2, 1979, as amended at 48
FR 21928, May 16, 1983; 51 FR 12606, Apr. 14, 1986]

Sec. 404.354 Your relationship to the insured.

(a) General. You may be related to the insured person in one of
several ways and be entitled to benefits as his or her child--as a
natural child, legally adopted child, stepchild, grandchild,
stepgrandchild, or equitably adopted child.
(b) Use of State laws. To decide your relationship to the insured,
we look to the laws that are in effect in the State where the insured
has his or her permanent home when you apply for benefits. If the
insured is deceased, we look to the laws that were in effect at the time
the insured worker died in the State where the insured had his or her
permanent home. If the insured's permanent home is not or was not in one
of the 50 States, the Commonwealth of Puerto Rico, the Virgin Islands,
Guam, or American Samoa, we will look at the laws of the District of
Columbia. For a definition of permanent home, see Sec. 404.303. The
State laws we use are the ones the courts would use to decide whether
you could inherit a child's share of the insured's personal property if
he or she were to die without leaving a will. If these laws would not
permit you to inherit the insured's personal property as his or her
child, you may still be eligible for child's benefits if you are related
to the insured in one of the other ways described in Secs. 404.355
through 404.359.

[44 FR 34481, June 15, 1979, as amended at 49 FR 21513, May 22, 1984]

Sec. 404.355 Who is the insured's natural child.

You may be eligible for benefits as the insured's natural child if
one of the following conditions is met:
(a) You could inherit the insured's personal property as his or her
natural child under State inheritance laws as described in Sec. 404.354.

[[Page 97]]

(b) You are the insured's natural child, and the insured and your
mother or father went through a ceremony which would have resulted in a
valid marriage between them except for a legal impediment described in
Sec. 404.346(a).
(c) You are the insured's natural child and your mother or father
has not married the insured, but the insured has either acknowledged in
writing that you are his or her child, been decreed by a court to be
your father or mother, or been ordered by a court to contribute to your
support because you are his or her child. In the case where the insured
is deceased, the acknowledgement, court decree, or court order must have
been made before his or her death. For purposes of determining whether
the conditions of entitlement are met throughout the first month as
stated in Sec. 404.352(a), the written acknowledgement, court decree, or
court order will be considered to have occurred on the first day of the
month in which it actually occurred.
(d) Your mother or father has not married the insured but you have
evidence other than the evidence described in paragraph (c) of this
section to show that the insured is your natural father or mother.
Additionally, you must have evidence to show that the insured was either
living with you or contributing to your support at the time you applied
for benefits. See Sec. 404.366 for an explanation of the terms living
with and contributing to your support. If the insured is not alive at
the time of your application you must have evidence to show that the
insured was either living with you or contributing to your support when
he or she died.

[44 FR 34481, June 15, 1979, as amended at 45 FR 65540, Oct. 3, 1980; 49
FR 24115, June 12, 1984]

Sec. 404.356 Who is the insured's legally adopted child.

You may be eligible for benefits as the insured's child if you were
legally adopted by the insured. If you were legally adopted after the
insured's death by his or her surviving spouse you may also be
considered the insured's legally adopted child.

Sec. 404.357 Who is the insured's stepchild.

You may be eligible for benefits as the insured's stepchild if,
after your birth, your natural or adopting parent married the insured.
The marriage between the insured and your parent must be a valid
marriage under State law or a marriage which would be valid except for a
legal impediment described in Sec. 404.346(a). If the insured is alive
when you apply, you must have been his or her stepchild for at least 1
year immediately preceding the day you apply. For purposes of
determining whether the conditions of entitlement are met throughout the
first month as stated in Sec. 404.352(a)(2)(i), you will be considered
to meet the one year duration requirement throughout the month in which
the anniversary of the marriage occurs. If the insured is not alive when
you apply, you must have been his or her stepchild for at least 9 months
immediately preceding the day the insured died. This 9-month requirement
will not have to be met if the marriage between the insured and your
parent lasted less than 9 months under the conditions described in
Sec. 404.335(a)(2).

[48 FR 21928, May 16, 1983]

Sec. 404.358 Who is the insured's grandchild or stepgrandchild.

(a) Grandchild and stepgrandchild defined. You may be eligible for
benefits as the insured's grandchild or
stepgrandchild if you are the natural child, adopted child, or stepchild
of a person who is the insured's child as defined in Secs. 404.355
through 404.357, or Sec. 404.359. Additionally, for you to be eligible
as a grandchild or stepgrandchild, your natural or adoptive parents must
have been either deceased or under a disability, as defined in
Sec. 404.1501(a), at the time your grandparent or stepgrandparent became
entitled to old-age or disability benefits or died; or if your
grandparent or stepgrandparent had a period of disability that continued
until he or she became entitled to benefits or died, at the time the
period of disability began. If your parent is deceased, for purposes of
determining whether the conditions of entitlement are met throughout the

[[Page 98]]

first month as stated in Sec. 404.352(a)(2)(i), your parent will be
considered to be deceased as of the first day of the month of death.
(b) Legally adopted grandchild or stepgrandchild. If you are the
insured's grandchild or stepgrandchild and you are legally adopted by
the insured or by the insured's surviving spouse after his or her death,
you are considered an adopted child and the dependency requirements of
Sec. 404.362 must be met.

[44 FR 34481, June 15, 1979, as amended at 48 FR 21928, May 16, 1983]

Sec. 404.359 Who is the insured's equitably adopted child.

You may be eligible for benefits as an equitably adopted child if
the insured had agreed to adopt you as his or her child but the adoption
did not occur. The agreement to adopt you must be one that would be
recognized under State law so that you would be able to inherit a
child's share of the insured's personal property if he or she were to
die without leaving a will. The agreement must be in whatever form, and
you must meet whatever requirements for performance under the agreement,
that State law directs. If you apply for child's benefits after the
insured's death, the law of the State where the insured had his or her
permanent home at the time of his or her death will be followed. If you
apply for child's benefits during the insured's life, the law of the
State where the insured has his or her permanent home at the time or
your application will be followed.

Sec. 404.360 When a child is dependent upon the insured person.

One of the requirements for entitlement to child's benefits is that
you be dependent upon the insured. The evidence you need to prove your
dependency is determined by how you are related to the insured. To prove
your dependency you may be asked to show that at a specific time you
lived with the insured, that you received contributions for your support
from the insured, or that the insured provided at least one-half of your
support. These dependency requirements, and the time at which they must
be met, are explained in Secs. 404.361 through 404.365. The terms living
with, contributions for support, and one-half support are defined in
Sec. 404.366.

Sec. 404.361 When a natural child is dependent.

If you are the insured's natural child, as defined in Sec. 404.355,
you are considered dependent upon him or her. However, if you are
legally adopted by someone else during the insured's lifetime and after
the adoption you apply for child's benefits on the insured's earnings
record, you will be considered dependent upon the insured (your natural
parent) only if he or she was either living with you or contributing to
your support at one of these times--
(a) When you applied;
(b) When the insured died; or
(c) If the insured had a period of disability that lasted until he
or she died or became entitled to disability or old-age benefits, at the
beginning of the period of disability or at the time he or she became
entitled to benefits.

Sec. 404.362 When a legally adopted child is dependent.

(a) General. If you were legally adopted by the insured before he or
she became entitled to old-age or disability benefits, you are
considered dependent upon him or her. If you were legally adopted by the
insured after he or she became entitled to old-age or disability
benefits and you apply for child's benefits during the life of the
insured, you must meet the dependency requirements stated in paragraph
(b) of this section. If you were legally adopted by the insured after he
or she became entitled to old-age or disability benefits and you apply
for child's benefits after the death of the insured, you are considered
dependent upon him or her. If you were adopted after the insured's death
by his or her surviving spouse, you may be considered dependent upon the
insured only under the conditions described in paragraph (c) of this
section.
(b) Adoption by the insured after he or she became entitled to
benefits. (1) General. If you are legally adopted by the insured after
he or she became entitled to benefits and you are not the insured's
natural child or stepchild, you are considered dependent on the

[[Page 99]]

insured during his or her lifetime only if--
(i) You had not attained age 18 when adoption proceedings were
started, and your adoption was issued by a court of competent
jurisdiction within the United States; or
(ii) You had attained age 18 before adoption proceedings were
started; your adoption was issued by a court of competent jurisdiction
within the United States; and you were living with or receiving at least
one-half of your support from the insured for the year immediately
preceding the month in which your adoption was issued.
(2) Natural child and stepchild. If you were legally adopted by the
insured after he or she became entitled to benefits and you are the
insured's natural child or stepchild, you are considered dependent upon
the insured.
(c) Adoption by the insured's surviving spouse--(1) General. If you
are legally adopted by the insured's surviving spouse after the
insured's death, you are considered dependent upon the insured as of the
date of his or her death if--
(i) You were either living with or receiving at least one-half of
your support from the insured at the time of his or her death; and,
(ii) The insured had started adoption proceedings before he or she
died; or if the insured had not started the adoption proceedings before
he or she died, his or her surviving spouse began and completed the
adoption within 2 years of the insured's death.
(2) Grandchild or stepgrandchild adopted by the insured's surviving
spouse. If you are the grandchild or stepgrandchild of the insured and
any time after the death of the insured you are legally adopted by the
insured's surviving spouse, you are considered the dependent child of
the insured as of the date of his or her death if--
(i) Your adoption took place in the United States;
(ii) At the time of the insured's death, your natural, adopting or
stepparent was not living in the insured's household and making regular
contributions toward your support; and
(iii) You meet the dependency requirements stated in Sec. 404.364.

[44 FR 34481, June 15, 1979; 44 FR 56691, Oct. 2, 1979, as amended at 56
FR 24000, May 28, 1991; 57 FR 3938, Feb. 3, 1992]

Sec. 404.363 When a stepchild is dependent.

If you are the insured's stepchild, as defined in Sec. 404.357, you
are considered dependent upon him or her if you were either living with
or receiving at least one-half of your support from him or her at one of
these times--
(a) When you applied;
(b) When the insured died; or
(c) If the insured had a period of disability that lasted until his
or her death or entitlement to disability or old-age benefits, at the
beginning of the period of disability or at the time the insured became
entitled to benefits.

Sec. 404.364 When a grandchild or stepgrandchild is dependent.

If you are the insured's grandchild or stepgrandchild, as defined in
Sec. 404.358(a), you are considered dependent upon the insured if--
(a) You began living with the insured before you became 18 years
old; and
(b) You were living with the insured in the United States and
receiving at least one-half of your support from him for the year before
he or she became entitled to old-age or disability benefits or died; or
if the insured had a period of disability that lasted until he or she
became entitled to benefits or died, for the year immediately before the
month in which the period of disability began. If you were born during
the 1-year period, the insured must have lived with you and provided at
least one-half of your support for substantially all of the period that
begins on the date of your birth. The term substantially all is defined
in Sec. 404.362(b)(1)(iii).

Sec. 404.365 When an equitably adopted child is dependent.

If you are the insured's equitably adopted child, as defined in
Sec. 404.359, you are considered dependent upon him or her if you were
either living with or receiving contributions for your support from the
insured at the time of his

[[Page 100]]

or her death. If your equitable adoption is found to have occurred after
the insured became entitled to old-age or disability benefits, your
dependency cannot be established during the insured's life. If your
equitable adoption is found to have occurred before the insured became
entitled to old-age or disability benefits, you are considered dependent
upon him or her if you were either living with or receiving
contributions for your support from the insured at one of these times--
(a) When you applied; or
(b) If the insured had a period of disability that lasted until he
or she became entitled to old-age or disability benefits, at the
beginning of the period of disability or at the time the insured became
entitled to benefits.

Sec. 404.366 ``Contributions for support,'' ``one-half support,'' and ``living with'' the insured defined--determining first month of entitlement.

To be eligible for child's or parent's benefits, and in certain
Government pension offset cases, you must be dependent upon the insured
person at a particular time or be assumed dependent upon him or her.
What it means to be a dependent child is explained in Secs. 404.360
through 404.365; what it means to be a dependent parent is explained in
Sec. 404.370(f); and the Government pension offset is explained in
Sec. 404.408a. Your dependency upon the insured person may be based upon
whether at a specified time you were receiving contributions for your
support or one-half of your support from the insured person, or whether
you were living with him or her. These terms are defined in paragraphs
(a) through (c) of this section.
(a) Contributions for support. The insured makes a contribution for
your support if the following conditions are met:
(1) The insured gives some of his or her own cash or goods to help
support you. Support includes food, shelter, routine medical care, and
other ordinary and customary items needed for your maintenance. The
value of any goods the insured contributes is the same as the cost of
the goods when he or she gave them for your support. If the insured
provides services for you that would otherwise have to be paid for, the
cash value of his or her services may be considered a contribution for
your support. An example of this would be work the insured does to
repair your home. The insured person is making a contribution for your
support if you receive an allotment, allowance, or benefit based upon
his or her military pay, veterans' pension or compensation, or social
security earnings.
(2) Contributions must be made regularly and must be large enough to
meet an important part of your ordinary living costs. Ordinary living
costs are the costs for your food, shelter, routine medical care, and
similar necessities. If the insured person only provides gifts or
donations once in a while for special purposes, they will not be
considered contributions for your support. Although the insured's
contributions must be made on a regular basis, temporary interruptions
caused by circumstances beyond the insured person's control, such as
illness or unemployment, will be disregarded unless during this
interrruption someone else takes over responsibility for supporting you
on a permanent basis.
(b) One-half support. The insured person provides one-half of your
support if he or she makes regular contributions for your ordinary
living costs; the amount of these contributions equals or exceeds one-
half of your ordinary living costs; and any income (from sources other
than the insured person) you have available for support purposes is one-
half or less of your ordinary living costs. We will consider any income
which is available to you for your support whether or not that income is
actually used for your ordinary living costs. Ordinary living costs are
the costs for your food, shelter, routine medical care, and similar
necessities. A contribution may be in cash, goods, or services. The
insured is not providing at least one-half of your support unless he or
she has done so for a reasonable period of time. Ordinarily, we consider
a reasonable period to be the 12-month period immediately preceding the
time when the one-half support requirement must be met under the rules
in Secs. 404.362 through 404.364 (for child's benefits), in
Sec. 404.370(f) (for parent's

[[Page 101]]

benefits) and in Sec. 404.408a(c) (for benefits where the Government
pension offset may be applied). A shorter period will be considered
reasonable under the following circumstances:
(1) At some point within the 12-month period, the insured either
begins or stops providing at least one-half of your support on a
permanent basis and this is a change in the way you had been supported
up to then. In these circumstances, the time from the change up to the
end of the 12-month period will be considered a reasonable period,
unless paragraph (b)(2) of this section applies. The change in your
source of support must be permanent and not temporary. Changes caused by
seasonal employment or customary visits to the insured's home are
considered temporary.
(2) The insured provided one-half or more of your support for at
least 3 months of the 12-month period, but was forced to stop or reduce
contributions because of circumstances beyond his or her control, such
as illness or unemployment, and no one else took over the responsibility
for providing at least one-half of your support on a permanent basis.
Any support you received from a public assistance program is not
considered as a taking over of responsibility for your support by
someone else. Under these circumstances, a reasonable period is that
part of the 12-month period before the insured was forced to reduce or
stop providing at least one-half of your support.
(c) ``Living with'' the insured. You are living with the insured if
you ordinarily live in the same home with the insured and he or she is
exercising, or has the right to exercise, parental control and authority
over your activities. You are living with the insured during temporary
separations if you and the insured expect to live together in the same
place after the separation. Temporary separations may include the
insured's absence because of active military service or imprisonment if
he or she still exercises parental control and authority. However, you
are not considered to be living with the insured if you are in active
military service or in prison. If living with is used to establish
dependency for your eligibility to child's benefits and the date your
application is filed is used for establishing the point for determining
dependency, you must have been living with the insured throughout the
month your application is filed in order to be entitled to benefits for
that month.
(d) Determining first month of entitlement. In evaluating whether
dependency is established under paragraph (a), (b), or (c) of this
section, for purposes of determining whether the conditions of
entitlement are met throughout the first month as stated in
Sec. 404.352(a)(2)(i), we will not use the temporary separation or
temporary interruption rules.

[44 FR 34481, June 15, 1979, as amended at 45 FR 65540, Oct. 3, 1980; 48
FR 21928, May 16, 1983; 52 FR 26955, July 17, 1987]

Sec. 404.367 When you are a ``full-time elementary or secondary school student''.

Beginning August 1982, you may be eligible for child's benefits if
you are a full-time elementary or secondary school student. For the
purposes of determining whether the conditions of entitlement are met
throughout the first month as stated in Sec. 404.352(a)(2)(i), if you
are entitled as a student on the basis of attendance at an elementary or
secondary school, you will be considered to be in full-time attendance
for a month during any part of which you are in full-time attendance.
You are a full-time elementary or secondary school student if you meet
all the following conditions:
(a) You attend a school which provides elementary or secondary
education, respectively, as determined under the law of the State or
other jurisdiction in which it is located;
(b) You are in full-time attendance in a day or evening
noncorrespondence course of at least 13 weeks duration and are carrying
a subject load which is considered full-time for day students under the
institution's standards and practices. Additionally, your scheduled
attendance must be at the rate of at least 20 hours per week unless we
find that:
(1) The school attended does not schedule at least 20 hours per week
and going to that particular school is your only reasonable alternative;
or

[[Page 102]]

(2) Your medical condition prevents you from having scheduled
attendance of at least 20 hours per week. To prove that your medical
condition prevents you from scheduling 20 hours per week, we may request
that you provide appropriate medical evidence or a statement from the
school.
(c) You are not being paid while attending the school by an employer
who has requested or required that you attend the school;
(d) You are in grade 12 or below; and
(e) You are not confined in a jail, prison, or other penal
institution or correctional facility for conviction of a felony
committed after October 19, 1980. (See Sec. 404.468, paragraphs (b) and
(c) for the meaning of felony and an explanation of when we consider a
person to be confined in a penal or correctional facility.)

[48 FR 21928, May 16, 1983, as amended at 48 FR 55452, Dec. 13, 1983; 56
FR 35999, July 30, 1991]

Sec. 404.368 When you are considered a full-time student during a period of nonattendance.

If you are a full-time student, your eligibility may continue during
a period of nonattendance (including part-time attendance) if all the
following conditions are met:
(a) The period of nonattendance is 4 consecutive months or less;
(b) You show us that you intend to resume your studies as a full-
time student at the end of the period or at the end of the period you
are a full-time student; and
(c) The period of nonattendance is not due to your expulsion or
suspension from the school.

[48 FR 21929, May 16, 1983]

Sec. 404.369 Special rules for entitlement to child's benefits if you are a full-time student for months before August 1982.

(a) Full-time student for months before August 1982. You are a full-
time student for purposes of benefits for months before August 1982 if:
(1) You are under age 22;
(2) You are attending an educational institution as defined in
paragraph (b) of this section;
(3) You are enrolled in noncorrespondence courses and carrying a
subject load that is considered full-time for day students under the
practices and standards of the educational institution. If you are
enrolled in a junior college, college, or university, your course of
study must last at least 13 weeks. If you are enrolled in any other
educational institution, your course of study must last at least 13
weeks and your scheduled attendance must be at least 20 hours a week. If
your full-time attendance either begins or ends in a month, you will be
considered a full-time student for that month. You will not be
considered a full time student in the month you graduate if you complete
your course of study and stop carrying a full-time subject load in a
month before the month preceding the month you graduate; and
(4) You are not being paid while attending the educational
institution by an employer who has requested or required that you attend
the school.
(b) Educational institution defined. An educational institution is a
school (including a technical, trade, or vocational school), junior
college, college, or university that meets any one of the following
conditions:
(1) It is operated or directly supported by the United States, by
any State or local government, or by a political subdivision of any
State or local government;
(2) It is approved by a State agency or subdivision of the State or
accredited by a State or nationally recognized accrediting body. A
nationally recognized accrediting body is one determined to be such by
the U.S. Secretary of Education. A State-recognized accrediting body is
one designated or recognized by a State as the proper authority for
accrediting schools, colleges, or universities. Approval by a State
agency or subdivision includes approval of a school, college, or
university as an educational institution or approval of one or more of
the courses offered by a school, college or university; or
(3) It is a nonaccredited school, college, or university, but its
credits are accepted by at least 3 educational institutions that have
been accedited by

[[Page 103]]

a State or nationally recognized accrediting body.
(c) When benefits can be paid after July 1982 based on attendance at
a school other than an elementary or secondary school. If you meet the
conditions for entitlement to student benefits for months before August
1982 as explained in paragraphs (a) and (b) of this section, but do not
meet the conditions for entitlement beginning in August 1982 (see
Sec. 404.367), your benefits will end with July 1982 unless you meet the
following requirements:
(1) You have attained age 18;
(2) You are not under a disability;
(3) You were entitled to child's benefits (as a child, student or
disabled child) for August 1981; and
(4) You were in full-time attendance as described in paragraph
(a)(3) of this section at a post-secondary school for any month before
May 1982. (A post-secondary school is any school which meets the
definition of an educational institution as defined in paragraph (b) of
this section but is not an elementary or secondary school as defined in
Sec. 404.367(a).)
(d) Limitations on payments for months after July 1982. If you are
entitled to child's benefits based on the requirements of paragraphs (a)
and (c) of this section, your benefit amount (prior to any reduction due
to the family maximum or deduction on account of work) will be subject
to the following limitations:
(1) You will receive no benefits for May through August beginning
with calendar year 1982;
(2) Your benefit for September 1982 through April 1983 will be 75
percent of the benefit to which you were entitled for August 1981;
(3) Your benefit for September 1983 through April 1984 will be 50
percent of the benefit to which you were entitled for August 1981;
(4) Your benefit for September 1984 through April 1985 will be 25
percent of the benefit to which you were entitled for August 1981;
(5) You will receive no benefit for months after April 1985; and
(6) If your student benefits continue beyond July 1982 but later end
for any reason, you may not become reentitled to student benefits.

[48 FR 21929, May 16, 1983]

Parent's Benefits

Sec. 404.370 Who is entitled to parent's benefits.

You may be entitled to parent's benefits on the earnings record of
someone who has died and was fully insured. You are entitled to these
benefits if all the following conditions are met:
(a) You are related to the insured person as his or her parent in
one of the ways described in Sec. 404.374.
(b) You are at least 62 years old.
(c) You have not married since the insured person died.
(d) You apply.
(e) You are not entitled to an old-age benefit equal to or larger
than the parent's benefit amount.
(f) You were receiving at least one-half of your support from the
insured at the time he or she died, or at the beginning of any period of
disability he or she had that continued up to death. See Sec. 404.366(b)
for a definition of one-half support. If you were receiving one-half of
your support from the insured at the time of the insured's death, you
must give us proof of this support within 2 years of the insured's
death. If you were receiving one-half of your support from the insured
at the time his or her period of disability began, you must give us
proof of this support within 2 years of the month in which the insured
filed his or her application for the period of disability. You must file
the evidence of support even though you may not be eligible for parent's
benefits until a later time. There are two exceptions to the 2-year
filing requirement:
(1) If there is a good cause for failure to provide proof of support
within the 2-year period, we will consider the proof you give us as
though it were provided within the 2-year period. Good cause does not
exist if you were informed of the need to provide the proof within the
2-year period and you neglected to do so or did not intend to do so.
Good cause will be found to exist if you did not provide the proof
within the time limit due to--

[[Page 104]]

(i) Circumstances beyond your control, such as extended illness,
mental or physical incapacity, or a language barrier;
(ii) Incorrect or incomplete information we furnished you;
(iii) Your efforts to get proof of the support without realizing
that you could submit the proof after you gave us some other evidence of
that support; or
(iv) Unusual or unavoidable circumstances that show you could not
reasonably be expected to know of the 2-year time limit.
(2) The Soldiers' and Sailors' Civil Relief Act of 1940 provides for
extending the filing time.

Sec. 404.371 When parent's benefits begin and end.

(a) You are entitled to parent's benefits beginning with the first
month covered by your application in which you meet all the other
requirements for entitlement.
(b) Your entitlement to benefits ends with the month before the
month in which one of the following events first occurs:
(1) You become entitled to an old-age benefit equal to or larger
than the parent's benefit.
(2) You marry, unless your marriage is to someone entitled to
wife's, husband's, widow's, widower's, mother's, father's, parent's or
disabled child's benefits. If you marry a person entitled to these
benefits, the marriage does not affect your benefits.
(3) You die.

[44 FR 34481, June 15, 1979, as amended at 49 FR 24116, June 12, 1984]

Sec. 404.373 Parent's benefit amounts.

Your parent's monthly benefit before any reduction that may be made
as explained in Sec. 404.304, is figured in one of the following ways:
(a) One parent entitled. Your parent's monthly benefit is equal to
82\1/2\ percent of the insured person's primary insurance amount if you
are the only parent entitled to benefits on his or her earnings record.
(b) More than one parent entitled. Your parent's monthly benefit is
equal to 75 percent of the insured person's primary insurance amount if
there is another parent entitled to benefits on his or her earnings
record.

Sec. 404.374 Parent's relationship to the insured.

You may be eligible for benefits as the insured person's parent if--
(a) You are the mother or father of the insured and would be
considered his or her parent under the laws of the State where the
insured had a permanent home when he or she died;
(b) You are the adoptive parent of the insured and legally adopted
him or her before the insured person became 16 years old; or
(c) You are the stepparent of the insured and you married the
insured's parent or adoptive parent before the insured became 16 years
old. The marriage must be valid under the laws of the State where the
insured had his or her permanent home when he or she died. See
Sec. 404.303 for a definition of permanent home.

Special Payment at Age 72

Sec. 404.380 General.

Some older persons had little or no chance to become fully insured
for regular social security benefits during their working years. For
those who became 72 years old several years ago but are not fully
insured, a special payment may be payable as described in the following
sections.

Sec. 404.381 Who is entitled to special age 72 payments.

You are entitled to a special age 72 payment if--
(a) You have attained the age of 72; and
(1) You attained such age before 1968; or
(2) You attained such age after 1967--or, for applications filed
after November 5, 1990, you attained age 72 after 1967 and before 1972--
and have at least 3 quarters of coverage for each calendar year elapsing
after 1966 and before the year in which you attained age 72 (see subpart
B for a description of quarters of coverage);
(b) You reside in one of the 50 states, the District of Columbia, or
the Northern Mariana Islands;
(c) You apply; and

[[Page 105]]

(d) You are a U.S. citizen or a citizen of the Northern Mariana
Islands; or you are an alien who was legally admitted for permanent
residence in the United States and who has resided here continuously for
5 years. Residence in the United States includes residence in the
Northern Mariana Islands, Guam, American Samoa, Puerto Rico, and the
Virgin Islands.

[44 FR 34481, June 15, 1979, as amended at 57 FR 21598, May 21, 1992]

Sec. 404.382 When special age 72 payments begin and end.

(a) Your entitlement to the special age 72 payment begins with the
first month covered by your application in which you meet all the other
requirements for entitlement.
(b) Your entitlement to this payment ends with the month before the
month of your death.

Sec. 404.383 Special age 72 payment amounts.

(a) Payment from May 1983 on. If you are entitled to special age 72
payments from May 1983 on, you will receive a monthly payment of
$125.60. If your spouse is also entitled to special age 72 payments, he
or she will also receive $125.60. This amount, first payable for June
1982, will be increased when cost-of-living adjustments of Social
Security benefits occur. This special payment may be reduced, suspended
or not paid at all as explained in Sec. 404.384.
(b) Payment prior to May 1983. If a husband or a single individual
is entitled to special age 72 payments for months prior to May 1983, the
amount payable was $125.60 for the months since June 1982. The wife
received an amount approximiately one-half the husband's amount (i.e.,
$63.00 for months in the period June 1982-April 1983).

[49 FR 24116, June 12, 1984]

Sec. 404.384 Reductions, suspensions, and nonpayments of special age 72 payments.

(a) General. Special age 72 payments may not be paid for any month
you receive public assistance payments. The payment may be reduced if
you or your spouse are eligible for a government pension. In some
instances, the special payment may not be paid while you are outside the
United States. The rules on when special payments may be suspended,
reduced, or not paid are provided in paragraphs (b) through (e) of this
section.
(b) Suspension of special age 72 payments when you receive certain
assistance payments. You cannot receive the special payment if
supplemental security income or aid to families with dependent children
(AFDC) payments are payable to you, or if your needs are considered in
setting the amounts of these assistance payments made to someone else.
However, if these assistance payments are stopped, you may receive the
special payment beginning with the last month for which the assistance
payments were paid.
(c) Reduction of special age 72 payments when you or your spouse are
eligible for a government pension. Special payments are reduced for any
regular government pension (or lump-sum payment given instead of a
pension) that you or your spouse are eligible for at retirement. A
government pension is any annuity, pension, or retirement pay from the
Federal Government, a State government or political subdivision, or any
organization wholly owned by the Federal or State government. Also
included as a government pension is any social security benefit. The
term government pension does not include workmen's compensation payments
or Veterans Administration payments for a service-connected disability
or death.
(d) Amount of reduction because of a government pension. If you are
eligible for a government pension, the amount of the pension will be
subtracted from your special age 72 payment. If your spouse is eligible
for a government pension but is not entitled to the special payment,
your special payment is reduced (after any reduction due to your own
government pension) by the difference between the pension amount and the
full special payment amount. If both you and your spouse are entitled to
the special payment, each spouse's payment is first reduced by the
amount of his or her own government pension (if any). Then, the wife's
special payment is reduced by the amount that the husband's government
pension exceeds the full special payment. The

[[Page 106]]

husband's special payment is also reduced by the amount that the wife's
government pension exceeds the full special payment.
(e) Nonpayment of special age 72 payments when you are not residing
in the United States. No special payment is due you for any month you
are not a resident of one of the 50 States, the District of Columbia, or
the Northern Mariana Islands. Also, payment to you may not be permitted
under the rules in Sec. 404.463 if you are an alien living outside the
United States.

[44 FR 34481, June 15, 1979, as amended at 49 FR 24116, June 12, 1984]

Lump-Sum Death Payment

Sec. 404.390 General.

If a person is fully or currently insured when he or she dies, a
lump-sum death payment of $255 may be paid to the widow or widower of
the deceased if he or she was living in the same household with the
deceased at the time of his or her death. If the insured is not survived
by a widow or widower who meets this requirement, all or part of the
$255 payment may be made to someone else as described in Secs. 404.392
and 404.393.

[44 FR 34481, June 15, 1979, as amended at 48 FR 21929, May 16, 1983]

Sec. 404.391 Who is entitled to the lump-sum death payment as a widow or widower who was living in the same household.

You are entitled to the lump-sum death payment as a widow or widower
who was living in the same household if--
(a) You are the widow or widower of the deceased insured individual
based upon a relationship described in Sec. 404.345 or Sec. 404.346;
(b) You apply for this payment within two years after the date of
the insured's death. You need not apply again if, in the month prior to
the death of the insured, you were entitled to wife's or husband's
benefits on his or her earnings record; and
(c) You were living in the same household with the insured at the
time of his or her death. The term living in the same household is
defined in Sec. 404.347.

[44 FR 34481, June 15, 1979, as amended at 48 FR 21929, May 16, 1983]

Sec. 404.392 Who is entitled to the lump-sum death payment when there is no widow or widower who was living in the same household--death occurs after August 1981.

(a) General. If the insured individual dies after August 1981 and is
not survived by a widow or widower who meets the requirements of
Sec. 404.391, the lump-sum death payment shall be paid as follows:
(1) To a person who is entitled (or would have been entitled had a
timely application been filed) to widow's or widower's benefits (as
described in Sec. 404.335) or mother's or father's benefits (as
described in Sec. 404.339) on the work record of the deceased worker for
the month of that worker's death; or
(2) If no person described in (1) survives, in equal shares to each
person who is entitled (or would have been entitled had a timely
application been filed) to child's benefits (as described in
Sec. 404.350) on the work record of the deceased worker for the month of
that worker's death.
(b) Application requirement. A person who meets the requirements of
paragraph (a)(1) of this section need not apply to receive the lump-sum
death payment if, for the month prior to the death of the insured, that
person was entitled to wife's or husband's benefits on the insured's
earnings record. Otherwise, an application must be filed within 2 years
of the insured's death.

[48 FR 21929, May 16, 1983]

Sec. 404.393 Who is entitled to the lump-sum death payment when there is no widow or widower who was living in the same household--death occurs before September 1, 1981.

If the insured individual dies before September 1, 1981 and is not
survived by a widow or widower who meets the requirements of
Sec. 404.391, the lump-sum death payment shall be paid as follows:
(a) If all or part of the burial expenses of the deceased incurred
by a funeral home remain unpaid, the funeral home may receive the lump-
sum death

[[Page 107]]

payment to the extent of the unpaid expenses if--
(1) A person who has assumed the responsibility for paying these
expenses applies for the lump-sum death payment within 2 years of the
insured's death, asking that the payment be made to the funeral home; or
(2) At least 90 days have gone by since the death of the insured, no
person has assumed responsibility for paying the burial expenses, and
the funeral home director or other official of the funeral home applies
for the payment.
(b) If all the burial expenses of the insured that were incurred by
a funeral home have been paid, and any part of the lump-sum death
payment remains, it may be paid to a person who paid these burial
expenses and who applies for the payment within 2 years of the insured's
death.
(c) If the body of the deceased is not available for burial, but
expenses were incurred in connection with a memorial service or any
other item for which expenses are customarily incurred in connection
with disposing of a deceased's remains, the lump-sum death payment may
be paid to a person who paid the expenses and applies for the payment
within 2 years of the insured's death.
(d) If any part of the lump-sum death payment remains after payments
have been made under paragraphs (a), (b), and (c) of this section, that
part of the payment may be made to a person who applies within 2 years
of the insured's death and who has paid other expenses of a burial in
the following order of priority--
(1) Expenses of opening and closing the grave;
(2) Expenses of providing the burial plot; and
(3) Any remaining expenses in connection with the burial.

[44 FR 34481, June 15, 1979; 44 FR 56691, Oct. 2, 1979. Redesignated and
amended at 48 FR 21929, 21930, May 16, 1983]

Sec. 404.394 Who is entitled to the lump-sum death payment when burial expenses are paid from the deceased's funds.

If funds of a deceased person were used to pay any of the burial
expenses for which payment of the lump-sum can be made under the rules
in Sec. 404.393, the deceased person's estate may be entitled to the
lump-sum death payment. If you apply for the payment on behalf of a
person's estate, you must show you are the legal representative
(administrator or executor) of the estate. If there is no legal
representative and none will be appointed, you must agree to divide the
payment among those who have a right to it under State law, or under
foreign law, that applies where the deceased had his or her permanent
home at death. We may also require that you get written approval to
receive the payment from any of the deceased's closest relatives who are
available. A person's closest relatives follow this order: widower or
widow; children and the children of any deceased children; parents;
brothers and sisters and the children of any deceased brothers and
sisters; and other relatives by blood or adoption.

[44 FR 34481, June 15, 1979. Redesignated and amended at 48 FR 21929,
21930, May 16, 1983]

Sec. 404.395 Who is not entitled to the lump-sum death payment.

The following persons and organizations are not entitled to the
lump-sum payment--
(a) The U.S. Government or a foreign government;
(b) Any person who has received or will receive repayment from any
other source for the burial expenses he or she paid;
(c) Persons and organizations who are required by a contract to pay
the burial expenses except for a tax-exempt, nonprofit home for the sick
or aged that paid for burial of a deceased resident or guest or a tax-
exempt, nonprofit fraternal organization that paid a member's burial
expenses not covered by an express contract;
(d) An employer or organization that paid burial expenses of an
employee or member under a plan, system, or general practice other than
a home for the sick or aged or a fraternal organization mentioned in
paragraph (c) of this section; and
(e) A person or organization that furnished goods or services for
the burial unless the goods or services were furnished by--

[[Page 108]]

(1) A State or a political subdivision of a State;
(2) An organization exempt from income tax under section 501(c)(3)
or (13) of the Internal Revenue Code; or
(3) A funeral director in connection with burial of a close
relative.

[44 FR 34481, June 15, 1979. Redesignated at 48 FR 21929, May 16, 1983]