TN 31 (05-04)

Citations:

Act-Sec. 216(c),(e),(g),(k), Regulations No. 4 -- Secs. 404.335, 404.357

A. Policy — marital relationship duration

1. General Policy

An applicant for surviving spouse or surviving stepchild benefits who does not meet any of the alternative requirements for entitlement (as listed in the appropriate entitlement subchapters) must meet a duration-of-marriage requirement. He/she may meet this entitlement requirement if the marriage on which the relationship is based took place no later than 9 months immediately preceding the day on which the worker died. Under certain conditions (see GN 00305.100A.2.), the 9-month requirement is deemed to be met.

2. When the 9-Month Requirement can be Deemed

Deem the 9-month relationship requirement if:

1. The worker's death was accidental (see GN 00305.105); or

2. The worker's death occurred in the line of duty while he/she was a member of a uniformed service, serving on active duty (see GN 00305.110); or

3. The claimant had the necessary relationship to the worker for at least 9 months as a result of a previous marriage, and

   • this previous marriage ended in divorce; and

   • the claimant (or the child's natural parent in the case of a surviving stepchild) had remarried the worker prior to the worker's death; or

4. For surviving spouses only, effective for applications filed in or after March 2004:

   • the NH had been married prior to his/her marriage to the surviving spouse; and

   • the prior spouse was institutionalized during the NH’s marriage to him/her due to mental incompetence or similar incapacity; and

   • during the period of the prior spouse’s institutionalization, the NH would have divorced the prior spouse and married the surviving spouse, but the NH did not do so because the divorce would have been unlawful, by reason of the institutionalization, under the laws of the State in which the NH was domiciled at the time; this determination is based on evidence satisfactory to SSA; and

   • the prior spouse remained institutionalized up to the time of his/her death; and

   • the NH married the surviving spouse within 60 days after the prior spouse’s death.

See GN 00305.115 for development and legal guidelines for this provision.

NOTE: For the requirements in GN 00305.100A.2.a. through GN 00305.100A.2.c., the 9-month requirement cannot be deemed if, at the time of the marriage (the latest marriage if GN 00305.100A.2.c. applies), the worker could not have reasonably been expected to live 9 months.

B. Definition - month

For purposes of this duration provision, a month is a period ending with the day of the succeeding month numerically corresponding to the day of its beginning, less one. Count both the day of the marriage and the day preceding the day of death in figuring the 9-month period.

If a worker died on 11/15/89, the marriage would have to have occurred no later than 2/15/89, in order for it to have existed 9 months on 11/14/89, the day immediately preceding the day on which the worker died.