while he was married to her and while such son or daughter was under the age of eighteen, (3) she legally adopted his son or daughter while he was married to her and while such son or daughter was under the age of eighteen, (4) he was married to her at the time both of them legally adopted a child under the age of eighteen, (5) he was married to her for a period of not less than one year immediately prior to the day on which she died, or (6) in the month before the month of his marriage to her (A) he was entitled to, or on application therefor and attainment of age 62 in such prior month would have been entitled to, benefits under subsection (f) or (h) of section 202, or (B) he had attained age eighteen and was entitled to, or on application therefor would have been entitled to, benefits under subsection (d) of such section. (Section 216 (g) of the Social Security Act)

As used in this subsection, the term "parent" means the mother or father of an individual, a stepparent of an individual by a marriage contracted before such individual attained the age of sixteen, or an adopting parent by whom an individual was adopted before he attained the age of sixteen. (Section 202(h)(3), 64 Stat. 487; 42 U.S.C. 402)

In determining whether an applicant is the wife, husband, widow, widower, child, or parent of a fully insured or currently insured individual for purposes of this title, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a wife, husband, widow, widower, child, or parent shall be deemed such. (Section 216(h)(1) of the Social Security Act, as in effect prior to 1957)

· a widow shall be deemed to have been living with her husband at the time of his death if they were both members of the same household on the date of his death, or she was receiving regular contributions from him toward her support on such date, or he had been ordered by any court to contribute to her support. (Section 216(h) (2) of the Social Security Act, as in effect prior to 1957)

⚫ a widower shall be deemed to have been living with his wife at the time of her death if they were both members of the same household on the date of her death, or he was receiving regular contributions from her toward his support on such date, or she had been ordered by any court to contribute to his support. (Section 216(h)(3) of the Social Security Act, as in effect prior to 1957)

A child shall be deemed dependent upon his father or adopting father unless ✦✦✦ such individual was not living with or contributing to the support of such child and

(A) Such child is neither the legitimate nor adopted child of such individual, or

(B) Such child had been adopted by some other individual.

For purposes of this paragraph, a child deemed to be a child of a fully or currently insured individual pursuant to section 216 (h) (2) (B) shall, if such individual is the child's father, be deemed to be the legitimate child of such individual. (Section 202 (d)(3) of the Social Security Act)

A child shall be deemed dependent upon his stepfather * ** if * the child was living with or was receiving at least one-half of his support from such stepfather. (Section 202(d) (4), 64 Stat. 484; 42 U.S.C. 402) A child shall be deemed dependent upon his natural or adopting mother *** if such mother or adopting mother was a currently insured individual. A child shall also be deemed dependent upon his natural or adopting mother, or upon his stepmother,

* if * (A) she was living with or contributing to the support of such child, and (B) either (1) such child was neither living with nor receiving contributions from his father or adopting father, or (ii) such child was receiving at least one-half of his support from her. (Section 202(d) (5), 64 Stat. 484; 42 U.S.C. 402)

[Board Order 62-130, 27 FR. 10829, Nov. 7, 1962]

§ 237.302 Applicable state law and

status.

(a) Applicable state law defined. “Applicable state law" is the law which the courts of the domicile of the deceased employee, on the basis of whose insured status an individual claims an insurance annuity or lump sum under this part, would apply in deciding who is a widow, widower, child, or parent, when determining the devolution of intestate personal property. The deceased employee's domicile is determined as of the time of his death. If the deceased employee was not domiciled in any state, applicable state law is the law which the courts of the District of Columbia would apply when determining the devolution of such property.

(b) Status under applicable state law. An individual who is not a widow, widower, child, or parent under applicable state law, but who is treated as such under such law for the purpose of determining the devolution of intestate personal property, has the same "status" as a widow, widower, child, or parent. For example, under the law of some

states, an individual who is not a widow because her supposed marriage was void, may nevertheless be treated as a widow under such law, under certain strictly limited conditions. Such an individual has the "status" of a widow.

[Board Order 55-89, 20 FR. 3716, May 27, 1955]

§ 237.303 Definition of "widow".

An individual is the "widow" of an employee, as that term is used in section 5 of the act (except as stated in section 237.504(b) under section 5 (f) of the act), only if:

(a) She is the widow of the employee, or has the same status as a widow, under applicable state law, and

(b) One of the following requirements is met:

(1) She is the mother of the employee's son or daughter (an individual is the mother of a deceased employee's son or daughter, within the meaning of this subparagraph, if a son or daughter was born to her and such employee, even though such son or daughter died before an application was filed which involved the determination of whether such individual is a "widow," and even though such son or daughter was born after the death of such employee); or

(2) She was married to the employee (became his wife, or acquired inheritable status as such, under applicable State law) for a period of not less than one year immediately prior to the day on which he died; or

(3) She legally adopted the employee's son or daughter while she was married to him and while such son or daughter was under age 18; or

(4) The employee legally adopted her son or daughter while she was married to him and while such son or daughter was under age 18; or

(5) She was married to the employee at the time both of them legally adopted a child under age 18; or

(6) In the month before the month of her marriage to the employee, she was entitled, or on application would have been entitled, to a widow's or a parent's (upon reaching the proper age) or a disabled child's insurance benefit under the Social Security Act; or

(7) She was previously entitled, or on application would have been entitled to an annuity under section 237.406 or 237.408 and marries another employee who dies within one year after the marriage; and

(c) She was living with her husband employee at the time of his death. [Board Order 55-89, 20 F.R. 3715, May 27, 1955, as amended by Board Order 60-59, 25 F.R. 3818, Apr. 30, 1960; Board Order 62-130, 27 F.R. 10829, Nov. 7, 1962]

§ 237.304 Definition of "widower".

An individual is the "widower" of an employee, as that term is used in section 5 of the act (except as stated in section 237.504(b) under section 5 (f) of the act), only if:

(a) He is the widower of the employee, or has the same status as a widower, under applicable state law, and

(b) One of the following requirements is met:

(1) He is the natural father of the employee's son or daughter (an individual is the father of a deceased employee's son or daughter, within the meaning of this subparagraph, if a son or daughter was born to him and such employee, even though such son or daughter died before an application was filed which involved the determination of whether such individual is & "widower"); or

(2) He was married to the employee (became her husband, or acquired inheritable status as such, under applicable State law) for a period of not less than one year immediately prior to the day on which she died; or

(3) He legally adopted the employee's son or daughter while he was married to her and while such son or daughter was under age 18; or

(4) The employee legally adopted his son or daughter while he was married to her and while such son or daughter was under age 18; or

(5) He was married to the employee at the time both of them legally adopted a child under age 18; or

(6) In the month before the month of his marriage to the employee, he was entitled, or on application would have been entitled, to a widower's or a parent's (upon reaching the proper age) or a disabled child's insurance benefit under the the Social Security Act; and

(c) He was living with his wife employee at the time of her death, and

(d) He was receiving at least onehalf of his support from his wife employee at the time of her death or at the time her retirement annuity or pension began.

[Board Order 55-89, 20 F.R. 3716, May 27, 1955, as amended by Board Order 60-59, 25 F.R. 3818, Apr. 30, 1960]

§ 237.305 Definition of “living with”.

A widow shall be deemed to have been living with her husband at the time of his death and a widower living with his wife at the time of her death if, at such time, any one of the three following conditions existed:

(a) If the husband and wife were at such time members of the same household.

A husband and wife were members of the same household if they were living together, and customarily lived together, in the same place of abode.

A husband and wife who customarily lived together in the same place of abode but who were not actually doing so at such time, may nevertheless be members of the same household, if they were apart only temporarily and intended to resume living together in the same place of abode.

(b) If, at such time, the wife was receiving regular contributions from her husband toward her support or the husband receiving regular contributions from his wife toward his support.

Contributions must be substantial, and may be made in cash or other medium. In determining the sufficiency of contributions under this paragraph, the surrounding circumstances with respect to both the time when contributions are made and the amount thereof shall be taken into consideration.

(c) If, at such time, the husband had been ordered by any court to contribute to his wife's support or the wife ordered by any court to contribute to her husband's support.

This condition is met if the husband was legally obligated to contribute to the support of his wife or the wife to the support of her husband at such time by virtue of any order, judgment, or decree of a court of competent jurisdiction, regardless of whether he or she actually made any such contribution. In determining the existence of such a legal obligation, any such order, judgment, or decree shall be considered as in full force and effect unless it had expired or had been vacated.

[Board Order 55-89, 20 F.R. 3716, May 27, 1955]

§ 237.306 Definition of "child".

An individual is a “child," as that term is used in section 5 of the act (except as stated in § 237.504 (b) under section 5 (f) of the act), if he falls in one of the three classes described in paragraph (a)

of this section, and if he meets all four of the requirements set out in paragraph (b) of this section.

(a) Classes. For the purposes of this section, individuals are classified as follows:

(1) Children. A son or daughter (by blood) of a deceased employee, who is the child of such deceased employee, or has the same status as a child, under applicable state law, is a "child" of such employee.

(2) Stepchildren. (i) An individual who is the stepchild of a deceased employee by virtue of a marriage valid under applicable State law, which was contracted not less than 1 year immediately preceding the day on which the employee died, is a "child" of such employee.

(ii) Effective for annuities beginning after August 1960 an individual is deemed to be the stepchild of a deceased employee if his natural or adopting parent went through a marriage ceremony with the employee (who is not his natural or adopting parent) which would be valid but for a legal impediment resulting from an undissolved prior marriage or arising out of the prior marriage or its dissolution, or from a defect in the procedure followed in effecting the marriage.

(3) Adopted children. An individual who was legally adopted by a deceased employee, in accordance with applicable State law, is a "child" of such employee. An individual is deemed to be an employee's legally adopted "child" if he was living in the employee's household at the time of the employee's death and was legally adopted by the employee's surviving spouse after the employee died but prior to the end of two years after the date of the employee's death or after August 28, 1958, whichever date is later. An individual is not so deemed, however, if at the time of the employee's death he was receiving regular contributions toward his support from someone other than the employee or the employee's spouse, or from any public or private welfare organization which furnishes services or assistance for children.

(b) Requirements. An individual must meet all four of the following requirements in order to be a "child" for the purposes of this section:

(1) The individual must have been dependent upon his parent employee at the time of the employee's death.

(2) The individual shall not have been adopted after the employee's death

by other than a stepparent, grandparent, aunt, or uncle.

(3) The individual shall be unmarried. (4) The individual shall be less than 18 years of age, or shall have a permanent physical or mental condition, as that term is defined in § 208.10 of this chapter, which is such as to be disabling for work in any regular employment: Provided, That such disability began before the child attains age 18. Permanent disability for work in any regular employment shall be established in accordance with § 208.17 of this chapter.

[Board Order 55-89, 20 F.R. 3716, May 27, 1955, as amended by Board Order 60-59, 25 F.R. 3818, Apr. 30, 1960; Board Order 62-130, 27 F.R. 10829, Nov. 7, 1962; Board Order 66-15, 31 FR. 3177, Feb. 26, 1966]

§ 237.307 Definition of "dependent upon".

(a) Dependency upon a father or adopting father. (1) An individual who has filed an application for a child's insurance annuity based on the insured status of a deceased father or adopting father, who was an employee, is deemed to have been dependent upon such employee at the time of the employee's death if, at such time, such employee was either living with or contributing to the support of such individual.

(2) Even though the employee was not living with or contributing to the support of the individual at the time of the employee's death, the individual is deemed to have been dependent upon such employee at such time if the individual:

(i) Was either the legitimate or adopted child of such employee; and

(ii) Was not then the adopted child of someone else.

The term "legitimate child" as used in subdivision (i) of this subparagraph includes a child who was deemed to be a child under section 216(h) (2) (B) of the Social Security Act.

(b) Dependency upon α mother, adopting mother, or stepmother. An individual who has filed an application for a child's insurance annuity based on the insured status of a deceased mother, adopting mother, or stepmother, who was an employee, is deemed to have been dependent upon such employee at the time of the employee's death if, at such time:

(1) The employee contributed onehalf of the child's support; or

(2) The employee was living with or contributing to the support of the child and the child was neither living with nor receiving contributions from his natural or adopting father; or

(3) The employee, if the child's natural or adopting mother, was a partially insured individual.

(c) Dependency upon a stepfather. An individual who has filed an application for a child's insurance annuity based on the insured status of a deceased stepfather, who was an employee, is deemed to have been dependent upon such employee at the time of the employee's death if, at such time, the individual was either living with or receiving at least one-half of his support from such employee.

[Board Order 55-89, 20 F.R. 3717, May 27, 1955, as amended by Board Order 62-130, 27 F.R. 10829, Nov. 7, 1962]

§ 237.308

Definition of "parent".

An individual is a "parent," as that term is used in section 5 of the act (except as stated in § 237.504 (b) under section 5(f) of the act), if he falls in one of the three classes described in paragraph (a) of this section, and if he meets the requirement set out in paragraph (b) of this section.

(a) Classes. For the purposes of this section, individuals are classified as follows:

(1) Parents. A mother or father (by blood) of a deceased employee, who is the parent of such employee, or has the same status as a parent, under applicable state law, is a "parent" of such employee.

(2) Stepparents. An individual who is a stepparent of a deceased employee by reason of a marriage valid under applicable state law, which was contracted before such employee attained the age of 16, is a "parent" of such employee.

(3) Adopting parents. An individual by whom a deceased employee was legally adopted, in accordance with applicable state law, before the employee attained the age of 16, is a "parent" of such employee.

(b) Requirement. An individual, to be entitled to parent's insurance annuity payments, must have received, at the time of the employee's death, at least one-half of his support from such employee.

[Board Order 55-89, 20 F.R. 3717, May 27, 1955]

Subpart D-Insurance Annuity Pay

ments to Survivors

SOURCE: The provisions of this Subpart D contained in Board Order 55-89, 20 F.R. 3717, May 27, 1955; 20 F.R. 6004, Aug. 8, 1955, unless otherwise noted.

§ 237.401 Statutory provisions.

Widow's and widower's insurance annuity. A widow or widower of a completely insured employee, who will have attained the age of sixty, shall be entitled during the remainder of her or his life or, if she or he remarries, then until remarriage to an annuity for each month equal to such employee's basic amount: Provided, however, That if in the month preceding the employee's death the spouse of such employee was entitled to a spouse's annuity under subsection (e) of section 2 in an amount greater than the widow's or widower's insurance annuity, the widow's or widower's insurance annuity shall be increased to such greater amount. Stat. 729, as amended; 45 U. S. C. 228e)

(60

Widow's current insurance annuity. A widow of a completely or partially insured employee, who is not entitled to an annuity under subsection (a) and who at the time of filling an application for an annuity under this subsection will have in her care a child of such employee entitled to receive an annuity under subsection (c) shall be entitled to an annuity for each month equal to the Such annuity employee's basic amount.

shall cease upon her death, upon her remarriage, when she becomes entitled to an annuity under subsection (a), or when no child of the deceased employee is entitled to receive an annuity under subsection (c), whichever occurs first: Provided, however, That if in the month preceding the employee's death the spouse of such employee was entitled to a spouse's annuity under subsection (e) of section 2 in an amount greater than the widow's current insurance annuity, the widow's current insurance annuity shall be increased to such greater amount. (60 Stat. 729, as amended; 45 U. S. C. 228e.)

Child's insurance annuity. Every child of an employee who will have died completely or partially insured shall be entitled, for so long as such child lives and meets the qualifications set forth in paragraph (1) of subsection (1), to an annuity for each month equal to two-thirds of the employee's basic amount. (60 Stat. 729, as amended; 45 U. S. C. 228e)

Parent's insurance annuity. Each parent, sixty years of age or over, of a completely insured employee, who will have died leaving no widow, no widower, and no child, shall be entitled, for life, or, if such parent remarries after the employee's death, then until such remarriage, to an annuity for each month equal to two-thirds of the employee's basic amount. (60 Stat. 729, as amended, 45 U.S. C. 228e)

Correlation of payments. (1) An individual, entitled on applying therefor to receive for a month before January 1, 1947, an insurance benefit under the Social Security Act on the basis of an employee's wages, which benefit is greater in amount than would be an annuity for such individual under this section with respect to the death of such employee, shall not be entitled to such annuity. An individual, entitled on applying therefor to any annuity or lump sum under this section with respect to the death of an employee, shall not be entitled to a lump-sum death payment or, for a month beginning on or after January 1, 1947, to any insurance benefits under the Social Security Act on the basis of the wages of the same employee.

(2) If an individual is entitled to more than one annuity for a month under this section, such individual shall be entitled only to that one of such annuities for a month which is equal to or exceeds any other such annuity. (Section 5(g) of the act)

(3) In the case of any individual receiving or entitled to receive an annuity under this section on the day prior to the date of enactment of the provisions of this paragraph, the application of paragraph (2) of this subsection to such individual shall not operate to reduce the sum of (A) the annuity under this section of such individual, (B) the retirement annuity, if any, of such individual, and (C) the benefits under the Social Security Act which such individual receives or is entitled to receive, to an amount less than such sum was before the enactment of the provisions of this paragraph. (60 Stat. 730; 45 U. S. C. 228e)

When annuities begin and end. No individual shall be entitled to receive an annuity under this section for any month before January 1, 1947. An application for any payment under this section shall be made and filed in such manner and form as the Board prescribes. An annuity under this section for an individual otherwise entitled thereto shall begin with the month in which eligibility therefor was otherwise acquired, but not earlier than the first day of the twelfth month before the month in which the application was filed. No application for an annuity under this section filed prior to three months before the first month for which the applicant becomes otherwise entitled to receive such annuity shall be accepted. No annuity shall be payable for the month in which the recipient thereof ceases to be qualified therefor. (60 Stat. 732; 45 U. S. C. 228e)

[Board Order 55-89, 20 F.R. 3717, May 27, 1955, as amended by Board Order 60-59, 25 F.R. 3819, Apr. 30, 1960]