TN 16 (11-93)

Citations:

Social Security Act § Sections 202(a), 202(q), 227

Regulations 20 CFR 404.310, 404.311, 404.312

A. Policy - relationship requirements

1. Legal spouse

A legal spouse must be validly married to the NH under the laws of the State of the NH's domicile at the time the claimant files an application or during the life of the application; or

Have the same rights as a husband or wife to share in the distribution of the NH's intestate personal property under the laws of the State of the NH's domicile at the time of filing.

For instructions about same-sex marriage, see GN 00210.100.

2. Deemed spouse

A deemed spouse must have gone through a marriage ceremony with the NH in good faith resulting in a marriage which would have been valid except for a legal impediment.

B. Policy - alternative requirements

In addition to meeting the relationship requirements above, a claimant must either:

• Meet a duration-of-marriage requirement. This is met if the claimant has been married to the NH (or has the same rights as his or her spouse as stated in RS 00202.001A.1., or has been married ceremonially as explained in RS 00202.001A.2.) for at least 1 continuous year immediately before the day on which the claimant's application is filed. This requirement may be met on the basis of an application actually filed before the first anniversary of the marriage as long as the anniversary occurs prior to adjudication; or

• Be the natural mother or father of the worker's biological son or daughter; i.e., this requirement is met if a live child was born to the NH and claimant although the child need not be alive (see GN 00306.010 for development); or

• Have been entitled or potentially entitled to certain auxiliary or survivor's benefits under the RRA or SS Act in the month before the month of marriage to the NH. This requirement is met if, in that month, he or she had been entitled or potentially entitled to husband's or wife's (including deemed or divorced spouse's), widow(er)'s (including deemed widow(er)'s or surviving divorced spouse's), parent's, or childhood disability benefits on the record of a fully insured individual under the provisions of the SS Act, or widow(er)'s, (including divorced widow(er)'s), parent's, or child's (age 18 or over) annuity under the provisions of the RRA.

NOTE: A husband or wife is considered to have been “potentially entitled” if he or she met all requirements for entitlement other than the filing of an application (see RS 00202.080 through RS 00202.085 for development).

C. Policy - entitlement requirements

To be entitled to spouse benefits, a claimant must:

• be the spouse of an NH entitled to RIB or DIB (see RS 00202.001A); and

• file an application for benefits (see RS 00202.055 for the exception); and

• not be entitled to a RIB or DIB based on a PIA which equals or exceeds one-half the PIA of the NH. If the claimant is entitled to a benefit on another E/R at the same time, see RS 00202.025; and

• attain age 62; or

• have in care (see RS 01310.001 through RS 01310.015) a child entitled to a child's insurance benefit on his or her spouse's E/R. The child in care must be under age 16 or disabled. The child need not be receiving benefits on the same E/R but must be entitled to benefits on the E/R of the NH. If the child is entitled on another E/R, follow RS 00615.772 in deciding whether the child should file on the same E/R.

NOTE: For purposes of the exception to the GPO provision, a husband must have been receiving one half support from the NH unless the husband had been entitled or potentially entitled to widower's, parent's, or childhood disability benefits, or widower's, parent's, child's (over age 18) annuity under the RRA in the month before the month he married the NH. A husband is considered to have been “potentially entitled” if he met all requirements for entitlement other than the filing of an application and the attainment of age 62.

D. Reference

• Putative marriage, GN 00305.085

• Deemed marriages, GN 00305.055

• Common Law marriage, GN 00305.060