SSR 61-52. CHANGE OF CIRCUMSTANCES SHORTLY BEFORE WORKER'S DEATH

Where a person left his wife and stepdaughter because his wife had started divorce proceedings against him, and made no contributions or other provision for his stepdaughter's support during the week between his departure and the date of his death, held, the child was not dependent on her stepfather at the time of his death and cannot become entitled to child's insurance benefits on his earnings record.

When M divorced her first husband in September 1947, she retained custody of their 7-month-old daughter, C. M married F in July 1953 and she, F, and C lived together in an apartment. M and F both worked and both earned about the same amount. They pooled their incomes and paid all expenses of the family group from the pooled funds. On November 14, 1960, F was served with notice that M had filed suit for divorce against him and had petitioned for a restraining order against his interfering with, molesting, bothering, or hindering M or C in any way. F left the apartment immediately, rented quarters elsewhere, remained away from the home and made no further contributions or other provision for meeting the expenses of C or M. He died on November 21, 1960, one week after leaving their home. In December 1960, M filed an application on C's behalf for child's insurance benefits on F's earnings record.

Under section 202(d)(1)(C) of the Social Security Act, one of the conditions for entitlement to child's insurance benefits on the earnings record of a deceased person is that the child must have been dependent on that person at the time of death.

Section 202(d)(4) provides in effect that a child shall be deemed dependent upon his stepfather at the time of the latter's death if, at that time, the child was living with or was receiving at least one-half of his support from the stepfather. Accordingly, C can be entitled to benefits only if she was either living with F on November 21, 1960, or was receiving at least one-half of her support from him at that time.

Regulations No. 4, ยง 404.723(a), requires that where a child is claiming benefits on the earnings record of his deceased stepfather, to establish that the child was living with the stepfather at the time of death, there must be evidence showing that at that time:

Such individual and such child were living together at a common place of abode, giving address of such place, or if they were temporarily living apart, giving the reason therefor, the residence of each, the length of the separation, and the expected duration thereof; * * *

When F left the household where C and M were living, M's divorce suit was pending against him and he gave no indication that he was planning to return. Instead, all the circumstances establish a separation from M and C which was intended to be permanent and which in fact continued to the time of death. The present facts do not provide a basis for a finding that C was living with F when he died. Therefore, in order to meet the dependency requirement in section 202(d)(1), C must have been receiving at least one-half of her support from F at the time of his death.

The law does not require that the stepfather must actually have made a contribution on the day of his death. However, it does contemplate the existence of an economic relationship under which the child was dependent upon contributions by the stepfather for at least one-half of his support and that this relationship must have continued up to the time of the stepfather's death.

In determining what was the dependency or support situation at the time of death, consideration is given to the events which occurred during that period (up to 12 months) immediately preceding death which accurately reflects the situation at the time of death. Where events occurred during the 12-month period before the worker's death which show that the economic relationship had changed basically immediately before death, the determination of dependency or support must be made on the basis of the changed situation, even though the change occurred shortly before death. Thus, where a stepfather had been making contributions to the support of his stepchild, but left the family and discontinued his contributions at some time within the 12 months before his death, the economic relationship previously in existence has terminated before his death.

In the case at hand, there was a basic change in the economic relationship between F and C when F left the family home. He made no provisions for C's support after leaving, nor did he make any actual contributions for C's support. Under the relationship from that point on, she could not look to F for support, nor was she dependent upon F for any contributions at all.

Therefore, it is determined that C was not in fact receiving at least one-half of her support from F when he died.

Accordingly, it is held that C was not dependent on F at the time of F's death and is not entitled to child's insurance benefits on F's earnings record.


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