month which is based on the earnings of the individual who has the highest primary insurance amount.

(e) Entitlement to more than one benefit where not all benefits are child's insurance benefits and no benefit is an old-age or disability insurance benefit. If an individual is entitled for any month to more than one monthly benefit payable under the provisions of this subpart, none of which is an old-age or disability insurance benefit and all of which are not child's insurance benefits, only the greater of the monthly benefits to which he would (but for the provisions of this paragraph) otherwise be entitled shall be payable for such month.

[29 F.R. 12295, Aug. 27, 1964, as amended at 33 F.R. 14, Jan. 3, 1968; 33 F.R. 2710, Feb. 8, 1968]

§ 404.354

Status of individual entitled to benefits prior to September 1950. Section 101 (c) of the Social Security Act Amendments of 1950 (64 Stat. 488) provided that an individual who was entitled to monthly insurance benefits under title II of the Social Security Act as in effect prior to the effective date of the Social Security Act Amendments of 1950, and who would have been entitled to such benefits for September 1950 but for the enactment of the Social Security Act Amendments of 1950, is automatically entitled to the corresponding monthly benefits under the Act as amended as though such individual met the conditions of entitlement and became entitled to such benefits in September 1950.

[29 F.R. 12296, Aug. 27, 1964]

§ 404.355 Lump-sum death payments; general.

A lump-sum death payment is payable to one or more of the persons described in §§ 404.356-404.362 based upon the earnings of a deceased individual if:

(a) The individual died after August 31, 1950 either fully or currently insured (see Subpart B of this part); and

(b) An application for such lump sum is filed within 2 years after the date of death of the insured individual or, in the case of a surviving widow or widower of the deceased, such widow or widower was entitled to wife's or husband's insurance benefits, as the case may be, on the basis of the deceased's earnings for the month preceding the month of death.

See Subpart G of this part for provisions regarding the extension, under certain conditions, of the time for filing application for the lump-sum death payment. [29 F.R. 12296, Aug. 27, 1964]

§ 404.356 Lump-sum death payments; widow or widower.

A lump-sum death payment is payable to the widow or widower (as defined in § 404.1101) of a deceased individual if such widow or widower was "living in the same household" (as defined in § 404.1112) with the deceased at the time of his death, and the conditions described in § 404.355 are met, except that no application for such lump sum is necessary where such widow or widower was entitled to wife's or husband's insurance benefits, as the case may be, on the basis of the earnings of the deceased individual for the month preceding the month of his death.

[29 F.R. 12296, Aug. 27, 1964]

§ 404.357

Lump-sum death payments;

no eligible widow or widower. The lump sum is payable to the person or persons described in § 404.358 or § 404.360 if:

(a) The deceased individual is not survived by a widow or widower who meets the requirements in § 404.356 (without regard to whether such widow or widower has filed application for the lump-sum death payment); or

(b) The deceased individual was survived by a widow or widower who met all the requirements for entitlement to the lump-sum death payment (see § 404.356) but such widow or widower died before receiving payment.

[29 F.R. 12296, Aug. 27, 1964]

§ 404.358 Lump-sum death payments; funeral homes.

If all or part of the burial expenses of the deceased insured individual which are incurred by, or through, a funeral home (or funeral homes) remain unpaid, the lump sum shall be paid to such funeral home (or funeral homes) to the extent such burial expenses remain unpaid, provided that:

(a) A person who has assumed responsibility (see § 404.359) for payment of all or part of such burial expenses files application (in accordance with § 404.355) requesting that the lump sum be paid to such funeral home (or funeral homes); or

(b) At least 90 days have elapsed from the date of death of the insured individual; and

(1) No one has assumed responsibility (see § 404.359) for the payment of such burial expenses prior to the expiration of such period; and

(2) An application for the lump-sum death payment is filed in accordance with 404.355(b) by a representative of such funeral home (or funeral homes). [29 F.R. 12296, Aug. 27, 1964]

§ 404.359 Lump-sum death payments; assumption of responsibility for payment of burial expenses.

(a) For purposes of § 404.358, a person shall be considered to have assumed the responsibility for the payment of burial expenses incurred by, or through, a funeral home, except as provided in paragraph (b) of this section, if there is a bona fide agreement or understanding, either written or oral, between such person and the funeral home that such person will pay all or part of such burial expenses. It is not necessary that such agreement or understanding constitute a legally enforceable contract. An agreement or understanding with the funeral home that payment will be made only under certain conditions is, for purposes of this section, considered to be an assumption of responsibility to pay burial expenses even if such conditions have not occurred at the time of the filing of the application required by § 404.358(a) or before the expiration of the 90 day period referred to in § 404.358(b). For purposes of this section, a person under a legal obligation to pay burial expenses which is not the result of an agreement or understanding with a funeral home, shall not be considered, by reason of such obligation alone, to have "assumed responsibility" for payment of the burial expenses incurred by, or through a funeral home.

(b) A person described in paragraph (a) of this section will not be considered to have "assumed responsibility" for the payment of burial expenses for purposes of § 404.358 if such person:

(1) Dies before filing application requesting that payment of the lump-sum death payment be made to a funeral home by, or through, which burial expenses were incurred; or

(2) Is finally convicted by a court of competent jurisdiction of the felonious homicide of the deceased (see § 404.364). [29 F.R. 12296, Aug. 27, 1964]

§ 404.360 Lump-sum death payments; persons equitably entitled.

(a) Expenses incurred by or through a funeral home. If any part of the lumpsum death payment remains unpaid after payment pursuant to § 404.358, such amount shall be paid to any person or persons equitably entitled thereto, to the extent and in the proportions that such person or persons paid the burial expenses of the insured individual incurred by, or through, a funeral home (or funeral homes) provided that:

(1) All of the burial expenses of the insured individual incurred by, or through, a funeral home (or funeral homes) have been paid, including payments, if any, made under § 404.358; and (2) All of the conditions in § 404.355 are met.

(b) Expenses other than those incurred by or through a funeral home. If any part of the lump-sum death payment remains unpaid after payment, if any, pursuant to § 404.358 and paragraph (a) of this section, then such amount shall be payable to any person or persons equitably entitled thereto upon the filing of an application pursuant to § 404.355, to the extent and in the proportion that such person or persons paid expenses in connection with the burial of the insured individual in the following order of priority.

(1) Expenses of opening and closing the grave;

(2) Expenses of providing the burial plot;

(3) Any remaining expenses in connection with the burial of the insured individual.

(c) "Person or persons equitably entitled." The term "person or persons equitably entitled" includes, but is not limited to, the following:

(1) An organization exempt from the payment of taxes under section 501(c) (3) or section 501 (c) (13) of the Internal Revenue Code of 1954, furnishing goods or services in connection with the burial of the deceased;

(2) A State or any political subdivision thereof, or any instrumentality of one or more of the foregoing, furnishing goods or services in connection with the burial of the deceased;

(3) A funeral director furnishing goods or services (but only to the extent of the cost of such goods furnished or the actual expenditures from his own funds for the services specifically purchased for such burial) for the burial of:

(i) His spouse, child, stepchild, grandchild, parent, stepparent, grandparent, brother, or sister (including a relative by adoption); and

(ii) Any other relative, whether by blood, marriage, or adoption, living in the same household with the funeral director at the time of such relative's death.

(4) A home for the aged or sick exempt from the payment of taxes under section 501(c) of the Internal Revenue Code of 1954, paying the expenses of, or furnishing goods or services in connection with, the burial of an inmate or guest.

(5) An organization, exempt from the payment of taxes under section 501 (c) (8) of the Internal Revenue Code of 1954, paying the expenses of burial of a member (or one of the family of a member) of such organization, except to the extent such payment was pursuant to a plan or system providing for the payment of a fixed sum upon the death of such person, or was required by an express contract with the member.

(d) Person or persons not "equitably entitled." The term "person or persons equitably entitled" does not include, among others, any of the following:

(1) The United States Government or any wholly owned instrumentality thereof;

(2) A person under contractual obligation to pay the burial expenses of the deceased (except as provided in subparagraphs (4) and (5) of paragraph (c) of this section), to the extent of such obligation;

(3) An employer paying the expenses of burial of an employee, or an organization paying the expenses of burial of a member (except as provided in subparagraphs (4) and (5) of paragraph (c) of this section), to the extent that the payment by such employer or organization is pursuant to a plan, system, or general practice of such employer or organization;

(4) A person, other than one specified in subparagraphs (1), (2), (3), or (4) of paragraph (c) of this section, furnishing goods or services in connection with the burial of the deceased, to the extent of the goods or services furnished;

(5) A person who has been, or will be, reimbursed for burial expenses paid, to the extent of such reimbursement;

(6) A foreign government or any political subdivision thereof or any wholly

owned instrumentality of any one or more of the foregoing.

(e) "Equitable entitlement" where insured individual died before September 13, 1960. Where the insured individual died before September 13, 1960, the determination as to whether payment of the lump sum is to be made to the person or persons who paid the burial expenses of the deceased shall be made without regard to the provisions of § 404.358 and the provisions of paragraphs (a) and (b) of this section provided an application for such payment had been filed before December 1960, and entitlement to all or part of the lump-sum death payment is established on the basis of such application. In such case, the lump-sum death payment is payable to any person or persons equitably entitled thereto to the extent, and in the proportion, that such person or persons paid the burial expenses of the insured individual.

[29 F.R. 12296, Aug. 27, 1964]

§ 404.361 Lump-sum death payments; estate equitably entitled.

Where an estate is a "person equitably entitled" to a lump sum payment shall be made to the estate as follows:

(a) Payment to legal representative of estate. Where there is a legal representative of the estate, payment of any amount of the lump sum due to the estate will be made to such legal representative.

(b) Payment to relative of deceased. Where it appears reasonably certain that a legal representative of an estate has not and will not be appointed, or where a legal representative has been discharged, application may be filed on behalf of the deceased individual's estate by a relative (by blood, marriage, or adoption) of the deceased individual and payment of any lump sum due the estate shall be made to such applicant on behalf of the estate if:

(1) Such applicant agrees to distribute the payment to the person or persons entitled thereto under applicable State or foreign law and to account therefor to a legal representative of the estate if one should be appointed; and

in kinship to the deceased as determined by the following order:

(i) Children and the children of any deceased child;

(ii) Parents;

(iii) Brothers and sisters and children of deceased brothers and sisters;

(iv) All other relatives by blood or adoption, the closeness of relationship being determined according to the law of the domicile of the deceased insured individual.

Consent to payment to the applicant is not required under this subparagraph from any relative of the deceased insured individual in any case where the amount due the estate, if divided equally among the applicant and each of the relatives (including, if any, the spouse of the deceased) from whom consent would ordinarily be required under the provisions of this subparagraph, would result in a payment to each individual of $15 or less.

[29 F.R. 12297, Aug. 27, 1964]

§ 404.362 Lump-sum death payments; individual paying burial expenses dies before collecting the lump sum. In any case in which a person who is equitably entitled to a lump-sum death payment by virtue of having paid the burial expenses of the deceased insured individual (see § 404.360) dies before

collecting the lump sum, payment may be made to the estate of the equitably entitled person in the manner prescribed in § 404.361 except that, if the spouse of such deceased equitably entitled person files application for payment on behalf of such person's estate, consent of other relatives to payment being made to such spouse as would ordinarily be required by 404.361(b) need not be obtained from such other relatives.

[29 F.R. 12297, Aug. 27, 1964]

§ 404.363 Lump-sum death payments; amount of payment.

(a) Widow or widower. The amount of the lump-sum death payment to a deceased insured individual's widow or widower, who is entitled to such payment under § 404.356, is equal to three times the deceased's primary insurance amount, or $255, whichever is the least; (b) Funeral homes. When payment of the lump sum is to be made to a funeral home under the provisions of $ 404.358, the amount payable is determined as follows:

(1) One funeral home. If payment of the lump sum is to be made to one funeral home, the amount payable to such funeral home is an amount equal to whichever of the following is the least: (i) The amount of the unpaid burial expenses incurred by or through such funeral home;

(ii) Three times the primary insurance amount of the deceased individual;

or

(iii) $255.

(2) More than one funeral home. If payment of the lump sum is to be made to more than one funeral home, the amount of the lump sum that is to be paid (subject to the limitations of subparagraph (1) of this paragraph) to each funeral home is:

(i) The amount of the lump sum remaining, if any, after payment has been made to a funeral home in accordance with subparagraph (1) of this paragraph; or

(ii) Where payment is being made to more than one funeral home at the same time, the amount of the lump sum paid to each such funeral home shall be in the amount designated by the applicant who assumed responsibility for payment of the burial expenses incurred by, or through, such funeral homes. If there is more than one such applicant requesting payment to different funeral homes, the share of the lump sum paid to each such funeral home shall bear the same proportion to the total lump sum payable as the amount of the unpaid burial expenses incurred by, or through, such funeral home bears to the total unpaid burial expenses incurred by or through all the funeral homes that are to receive payment of a part of the lump sum.

(c) Person or persons paying burial expenses incurred by or through a funeral home. When payment of a lump sum is to be made to a person, or persons, who paid burial expenses incurred by, or through, a funeral home, or funeral homes (see § 404.360(a)), the amount payable to each such person is an amount equal to whichever of the following is the least:

(1) The amount of such burial expenses paid by such person;

(2) Three times the primary insurance amount of the deceased individual; (3) $255;

(4) The amount of the lump sum remaining, if any, after payment has been made to a funeral home, or funeral

homes, in accordance with paragraph (b) of this section; or

(5) An amount which bears the same proportion to the lump sum payable (as determined under the provisions of the preceding subparagraphs of this paragraph) as the amount of the burial expenses paid by such person bears to the total of the burial expenses incurred by, or through, a funeral home, or funeral homes.

(d) Person or persons paying burial expenses other than those incurred by or through a funeral home. When payment of the lump sum is to be made to a person who paid burial expenses other than those incurred by, or through, a funeral home, or funeral homes (see § 404.360 (b)), or where payment is to be made to more than one person who paid such burial expenses which are on the same level of priority (see § 404.360 (b) (1) (3)), the amount payable to each such person shall be an amount equal to whichever of the following is the least:

(1) The amount of such burial expenses paid by such person;

(2) Three times the primary insurance amount of the deceased individual; (3) $255;

(4) The amount of the lump sum remaining unpaid (if any), after payment has been made to:

(i) A funeral home, or funeral homes, in accordance with the provisions of paragraph (b) of this section; and

(ii) A person, or persons, who paid burial expenses incurred by, or through, a funeral home, or funeral homes, in accordance with paragraph (c) of this section; and

(iii) A person, or persons, who paid burial expenses, other than those incurred by, or through, a funeral home, or funeral homes, which are on a higher level of priority (see § 404.360 (b) (1) – (3)) than the expenses which constitute the basis for this payment of the lump sum; or

(5) An amount which bears the same proportion to the total lump sum payable (as determined under subparagraphs (1) through (4) of this paragraph) as the amount of the burial expenses (other than those incurred by, or through, a funeral home, or funeral homes) which such person paid (and which are the basis for this payment of the lump sum to such person) bears to the total of the burial expenses which are on the same

level of priority as determined in accordance with § 404.360 (b) (1)–(3)).

(e) Person or persons "equitably entitled"; insured individual died before September 13, 1960. Where the insured individual died before September 13, 1960, and, in accordance with § 404.360 (e), the lump sum is payable to the equitably entitled person or persons who paid the burial expenses of the deceased, the amount of the lump sum payable is determined as follows:

(1) If only one person is equitably entitled, the amount of the lump sum payable is an amount equal to whichever of the following is the least:

(i) The amount of the burial expenses paid by the applicant;

(ii) Three times the primary insurance amount of the deceased; or (iii) $255;

(2) If two or more persons are equitably entitled, the total lump sum which may be paid shall be whichever of the following is the least:

(i) Three times the primary insurance amount of the deceased;

(ii) $255; or

(iii) The total amount of burial expenses paid by all persons equitably entitled.

Each equitably entitled applicant shall be paid an amount which bears the same proportion to the total burial expenses paid by all persons equitably entitled, but in no event shall the amount paid to such person exceed the amount of burial expenses paid by him.

[29 F.R. 12297, Aug. 27, 1964]

§ 404.364 Effect of conviction of felonious homicide on entitlement to benefits or lump sum based on the deceased's earnings.

A person who has been finally convicted by a court of competent jurisdiction of the felonious homicide of an insured individual shall not be entitled to monthly benefits or to the lump-sum death payment based upon the earnings of such deceased individual and such convicted person shall be considered nonexistent in determining the entitlement of other persons to monthly benefits or the lump-sum death payment based on the deceased's earnings. [29 F.R. 12298, Aug. 27, 1964]

§ 404.366 Hospital insurance benefits; entitlement in general.

Subject to certain conditions and limitations on scope of benefits (see section