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CERTIFICATION OF ELECTION

TN 22 (04-09)

Citations:

Soc. Sec. Act 202(e), 202(f), 202(q), 216(c), 216(d), 216(g), 216(h), 216(k) and 225;

Regulations 20 CFR § 404.335 – 404.336;

Public Law § 5103 of P.L. 101-508

A. Policy

A claimant is entitled to benefits as a Number Holder’s (NH) widow(er), surviving divorced spouse, or disabled widow(er).

1. Widow(er)

a. Requirements for relationship

To meet the requirements:

1. The claimant is the widow(er) of a deceased NH if he or she was related to the NH as the NH’s legal spouse, putative spouse, or deemed spouse. The criteria for:

   • Legal spouse – the claimant was considered validly married to the NH under the laws of the State of the domicile at the time of the NH’s death. For proof of a valid marriage, see GN 00305.020; or

   • Putative spouse – the claimant has the same rights as a widow(er) 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 the NH’s death. For proof of a putative marriage, see GN 00305.085; or

   • Deemed spouse – (beginning 09/1960) the claimant went through a marriage ceremony with the NH in good faith resulting in a marriage which would have been valid except for a legal impediment. For proof of a deemed marriage, see GN 00305.055B.3.; and

2. The claimant was married to the NH for not less than 9 months immediately prior to the day in which the NH died, unless one of the exceptions to the 9-month marriage requirement is met. See policy in GN 00305.100, or as an alternative to meeting the marriage duration requirement, the claimant may qualify if he or she meets one of the requirements listed in RS 00207.001A.1.a.3. through RS 00207.001A.1.a.9. in this section;

3. The claimant is the mother or father of the NH’s child (even if the child is now deceased). A child of the NH is defined in RS 00203.001C and GN 00306.010A; or

4. The claimant while married to the NH, legally adopted the NH’s child before the child attained age 18 (see NOTE in RS 00207.001A.1.a. in this section); or

5. The claimant is the mother or father of a child legally adopted by the NH while they were married and before the child attained age 18; or

6. The adoption of a child by the claimant within 2 years after the NH’s death will qualify the claimant if:

   • The adoption of a child by the claimant is valid where it took place, and

   • The child meets all conditions outlined in GN 00306.145, deemed legally adopted by the NH as of the date of the NH’s death (see NOTE in RS 00207.001A.1.a. in this section); or

7. The claimant was married to the NH at the time both of them legally adopted a child under age 18; or

   NOTE: The equitable adoption of a child will not meet the requirements of items RS 00207.001A.1.a. in this section and RS 00207.001A.1.a. in this section since that is not a “legal adoption.”

8. The claimant was entitled or potentially entitled (see the first note below) to the following benefits under the Social Security Act in the month before the month he or she married the deceased NH:

   • Spouse’s (including deemed or divorced spouses),

   • Widow(er)’s (including deemed widow(er)’s or surviving divorced spouses),

   • Father’s and mother’s (based on the record of a fully insured individual),

   • Parent’s,

   • Childhood disability benefits (CDB); or

9. The claimant was entitled or potentially entitled (see the first note below) to a widow(er)’s, child’s (age 18 or older) or parent’s annuity payment under the Railroad Retirement Act (RRA) in the month before he or she married the deceased NH. To establish entitlement or potential entitlement to an RRA, see RS 00207.004.

   NOTE: For the instructions within this section, a claimant is considered to have been potentially entitled if he or she met all the requirements for entitlement other than the filing of an application and attainment of the required age.

   NOTE: For months after 12/90, more than one spouse can be entitled on the same earnings record (ER), e.g., one claimant can qualify as the legal spouse and another as a deemed spouse. In this situation, the legal spouse is paid outside the family maximum. See also RS 00207.002A.6.

b. Requirements for entitlement

In addition to satisfying the definition in RS 00207.001A.1.a., the widow(er) must:

1. be the widow(er) of an NH who died fully insured (or transitionally insured). For benefits before 09/65, the claimant must be the widow(er) of the NH who died fully insured; and

2. have attained one of the following ages:

   • 60, or

   • 72 before 1969 if the NH was only transitionally insured; or

   • 50, but not age 60, and be disabled (to be entitled for months after 1/68) (see RS 00207.001B in this section for disability requirements); and

3. be unmarried, unless the marriage can be disregarded per RS 00207.003A; and

4. have filed an application for widow(er)’s benefits. For exceptions to the filing requirement, see RS 00207.005; and

5. not be entitled to a retirement insurance benefit (RIB) which:

   • equals or exceeds the deceased NH's primary insurance amount (PIA), or

   • equals the NH's deemed PIA effective 06/78, or

   • equals the widow(er)s’ indexed PIA effective 01/85.

6. Proof of the NH’s death is required per GN 00304.001 and GN 02602.050A.1.

REMINDERS:

• A widow(er) may elect to exclude RIB from the scope of his/her application (GN 00204.020D through GN 00204.020E);

• If the widow(er) was convicted of a felonious and intentional homicide of the NH, see GN 00304.060; and

• If the railroad retirement board (RRB) has jurisdiction of the survivor's claim, see RS 01601.160.

2. Surviving divorced spouse

a. Requirements for relationship

A claimant is a surviving divorced spouse if he or she is an NH’s surviving divorced spouse who:

• Has a final divorce from the deceased NH, and

• Had been the legal or putative spouse of the NH for 10 years (20 years for benefits prior to 01/79) immediately before the date the final divorce became effective. See GN 00305.085 regarding the policy for a putative marriage. For benefits payable 01/91 and later, a deemed marriage is acceptable. For the policy on a deemed marriage, see GN 00305.055.

For the effect of a limited interruption in the marriage when claimant and NH divorced and remarry each other, see RS 00202.005A and Social Security Ruling (SSR) 67-55.

NOTE: If at the NH's death the divorce was not final, the claimant may qualify as the NH's widow(er) rather than as the surviving divorced spouse. For information on State laws relating to the effective date of dissolution, see GN 00305.165.

b. Requirements for entitlement

In addition to satisfying RS 00207.001A.2.a. in this section, the claimant must:

1. be the surviving divorced wife or husband of the NH who died fully insured. Transitionally insured status does not apply (RS 00202.015A.2.); and

2. have attained age 60, or meet the requirements for a disabled widow(er) (for disability requirements, see RS 00207.001B in this section); and

3. be unmarried, or, for entitlement after 12/83, have remarried but the marriage can be disregarded per RS 00207.003A; and

4. have filed an application; and

5. not be entitled to a retirement insurance benefit (RIB) which:

   1. equals or exceeds the deceased NH's primary insurance amount (PIA), or

   2. equals the NH's deemed PIA effective 06/78, or

   3. equals the widow(er)s’ indexed PIA effective 01/85.

Proof of the NH’s death is required per GN 00304.001 and GN 02602.050A.1. Benefits begin the first month in which the entitlement requirements are met.

3. Disabled widow(er)

a. Requirements for relationship

A disabled widow(er) or disabled surviving divorced spouse is an individual who meets the definition in RS 00207.001A.1.a. or RS 00207.001A.2.a. in this section and:

• Is disabled as defined in section 223(d) of the Act; and the disability must have begun within the prescribed period; (see RS 00207.001B.2. in this section); and

• Has served a waiting period or is exempt from a waiting period. In this situation, benefits will begin with the first full month during all of which he or she is again under a disability.

b. Entitlement requirements

In addition to satisfying RS 00207.001A.3.a. in this section, the claimant must meet the entitlement requirements for:

• Widow(er)'s benefits in RS 00207.001A.1.b. in this section; or

• Surviving divorced spouse’s benefits in RS 00207.001A.2.b. in this section.

For information on the effect of remarriage before entitlement, see RS 00207.003A and RS 00207.003A.1. Proof of age is always required to establish that the claimant has attained age 50. For evidence requirements, see GN 00302.030 and GN 00302.050.

B. Title II disability requirements

1. Eligibility requirements

Beginning with monthly benefits payable for 01/91, the definition of disability for surviving divorced spouses and widow(er)s is the same as for all other Title II claimants; i.e., based on the inability to engage in substantial gainful activity (SGA), see policy in DI 10105.065. The same policies and procedures are used as in any other Title II disability claim, including a consideration of vocational factors (age, education, and work experience).

NOTE: A widow(er) may meet the insured status requirements for disability insurance benefit (DIB) purposes on his or her own account and may, therefore, file two claims—one for disabled widow(er)s’ benefits (DWB) and one for DIB. Since the definition of disability for DWB was more restrictive than the definition of disability for DIB for monthly benefits for months prior to 01/91, it was possible for the DWB claim to be denied for any such month even though the DIB claim was allowed.

2. Prescribed period of disability

For a discussion on the prescribed period of disability policy, see DI 11005.050, Prescribed Period and Controlling Date.

For conditions when a widow(er) may be deemed entitled to DWB for health insurance (HI) purposes only, see RS 00207.020B.4. and HI 00801.155.

3. Waiting period

As in the case of DIB, effective 01/1973, the payment of DWB is subject to a waiting period of 5 full consecutive calendar months. For discussion on the waiting period policy, see DI 10110.001G.

IMPORTANT: Public Law (P.L.) 101-508 permits months of eligibility for Supplemental Security Income (SSI) payments and/or State Supplementary Payments (SSP) to be counted toward the 5-month waiting period for payments after 12/90 and toward the Medicare qualifying period. For further discussion, see DI 11015.020C.

C. References

GN 00302.020, What Evidence of Age to Request

GN 00305.055, Deemed Marriage

GN 00305.085, Putative Marriage

GN 00305.105, Accidental Death

GN 00306.175, Equitable Adoption – General

RS 00202.005, Divorced Spouse

RS 00615.302, Windexing – Alternate Method of Computing for Widow(er)s First Eligible 1/85 and Later