EFFECTIVE/PUBLICATION DATE: 06/25/92
ACQUIESCENCE RULING 86-2R(2)
Whether a "deemed widow" may be found entitled to Title II survivor Social Security benefits when a legal widow is entitled to Title II benefits on the same deceased person's Social Security earnings record and, if so, what is the appropriate amount of the "deemed widow's" benefits?
Section 216(h)(1)(B) of the Social Security Act (42 U.S.C. 416(h)(1)(B)), as in effect prior to enactment of Public Law 101-508; 20 CFR 404.346(b); SSR 80-9c
Second (Connecticut, New York, Vermont)
Rosenberg v. Richardson, 538 F.2d 487 (2d Cir. 1976); Capitano v. Secretary of HHS, 732 F.2d 1066 (2d Cir. 1984).
This ruling applies only to eligibility for benefits payable for months prior to January 1991 for determinations or decisions at all administrative levels (i.e., initial, reconsideration, administrative law judge hearing and Appeals Council). To the extent inconsistent therewith, this Ruling supersedes SSR 80-9c in cases in which the deemed widow resides in the Second Circuit only.
Max Rosenberg, an insured worker, married Celia in 1920 in New York City. Thirteen years later he obtained a Mexican divorce by mail. Two years after obtaining this divorce, Max and Frieda were ceremonially married in Connecticut. The parties believed they were validly married and lived together until Mr. Rosenberg's death in April 1971. Frieda was awarded benefits as the wife of Max Rosenberg, and as his widow beginning with the month of his death.
Celia later applied for benefits as the widow of Max Rosenberg. In December 1971, the Social Security Administration (SSA) decided that the Mexican divorce obtained by Max Rosenberg was invalid and had not terminated his first marriage. Thus, Celia was determined to be Max's legal widow. Widow's benefits were therefore entitled to Celia in December 1971. However, pursuant to section 202(k)(3)(A) of the Social Security Act, 42 U.S.C. 402(k)(3)(A), Celia's widow's benefits were reduced by the amount of the old age benefit to which she was simultaneously entitled. SSA determined that, due to Celia's entitlement as the legal widow, Frieda Rosenberg was not entitled to widow's benefits after November 1, 1971. The decision that Frieda Rosenberg's benefits were to be terminated was appealed. The Secretary's decision was sustained by the United States District Court for the Eastern District of New York and Frieda appealed to the Court of Appeals for the Second Circuit. The United States Court of Appeals for the Second Circuit heard the appeal and reversed the District Court.
Sam Capitano, an insured worker, married Betty in 1931. Although Sam filed for divorce in 1945, no legal divorce decree was issued. In 1951, Sam married Sarah, with whom he lived until his death in 1970. Sarah applied for and received (deemed) widow's benefits as the widow of Sam Capitano. Her benefits began in July 1975. In 1977, Betty applied for retirement benefits on her own Social Security earnings record and for widow's benefits on Sam's earnings record.
When Betty was awarded widow's benefits on Sam's earnings record, Sarah's benefits were stopped due to Betty's entitlement as the legal widow. Sarah exhausted her administrative remedies and then filed a civil action. The United States District Court for the Eastern District of New York upheld the Secretary's decision and Sarah appealed to the Court of Appeals for the Second Circuit. The United States Court of Appeals for the Second Circuit heard the appeal and reversed the District Court.
The court held that the provision of section 216(h)(1)(B) which requires terminating the benefits of a deemed widow if a legal widow is entitled, applied only where the legal widow could receive a "full" widow's benefit. In the instant case, the court ruled that since the legal widow was entitled to a Social Security benefit based upon her own earnings and would receive a widow's benefit of only $1.40 (the excess of her widow's benefit over her own benefit), the widow's benefit to Frieda should not have been terminated. Instead the court ordered the payment of a benefit to Frieda, the deemed widow, in an amount equal to the difference between the "full" widow's benefit and the additional amount to which Celia became entitled by virtue of being found to be the legal widow.
Reaffirming its prior decision in Rosenberg, the court held that termination of the deemed widow's benefit is appropriate only when the legal widow is or has been entitled to a "full benefit." In the instant case, the excess of Betty's widow's benefit over her own old age benefit was estimated to be $17.40; the "full" widow's benefit was $362.00. Thus Sarah, the deemed widow, was found entitled to the difference between the $17.40 and $362.40.
Prior to enactment of section 5119 of Public Law 101-508, section 216(h)(1)(B) of the Social Security Act (42 U.S.C. 416(h)(1)(B)), 20 CFR 404.346(b), and SSR 80-9c had been interpreted by SSA to mean that an applicant's entitlement to title II survivor benefits as the "deemed" widow (based upon a "good faith marriage") of a deceased wage earner will end the month before the month another person is determined to be the legal widow, if such legal widow is entitled to title II widow's benefits based upon the earnings record of the deceased wage earner.
The decisions by the U.S. Court of Appeals for the Second Circuit in Rosenberg and Capitano hold that a deemed widow (based upon a good faith marriage to a deceased wage earner) can continue to receive a title II widow's benefit even if another individual is determined to be entitled to receive a widow's benefit as the legal widow of the same wage earner, provided that the legal widow receives less than the full widow's benefit based upon the given wage record. The deemed widow would be entitled to a benefit equal to the difference between the full widow's benefit and the amount actually received by the legal widow.
This ruling applies only to entitlement to benefits payable for months prior to January 1991 in cases where the deemed widow resides in Connecticut, New York, or Vermont at the time of the determination or decision at any administrative level, i.e., initial, reconsideration, administrative law judge hearing or Appeals Council.
When a case involves a legal widow and a deemed widow as defined in 20 CFR 404.345 and 404.346(a), both have filed widow's claims on the same worker's earnings record, and the legal widow is found entitled to receive less than a "full" widow's benefit, for whatever reason, the difference between the benefit amount the legal widow is entitled to receive and the amount of the full benefit will be paid to the deemed widow, subject to any reductions applicable to the deemed widow.
 The original Acquiescence Ruling for the Second Circuit Court of Appeals' holdings in Rosenberg and Capitano, issued January 23, 1986, is rescinded and replaced by this revised Acquiescence Ruling to reflect the enactment of section 5119 of Public Law 101-508. Section 5119 of Public Law 101-508 authorizes the payment of benefits to both a legal "spouse" and a deemed "spouse," where "spouse" is defined as a wife, divorced wife, widow, surviving divorced wife, husband, divorced husband, widower, or surviving divorced husband. This change is effective with respect to benefits payable for months after December 1990.
 This ruling also applies to widowers.
 If a person is already entitled to benefits in December 1990 as a spouse, divorced spouse, widow(er), or surviving divorced spouse, he or she does not have to file another application in order to establish entitlement under the amended statute.
 As in any case involving auxiliary benefits the time period applicable to this ruling, the family maximum cannot be exceeded.