Rescinded 1978

SSR 68-71: Sections 202(e)(1) and (4), 216(h)(1)(A).—Widow's Insurance Benefits—Remarriage of Widow After Age 60—Effect of Rabbinical Divorce

SSR 68-71

Where a widow, after attaining age 60, remarried in 1964, and in 1966 obtained a rabbinical divorce while a resident of New York, and filed application for reentitlement to widow's insurance benefits on the earnings record of her deceased husband, held, (1) under New York law, a rabbinical divorce obtained in that State against a New York resident is of no legal effect in that State, and, accordingly, the widow's remarriage continued in existence; and (2) since the widow cannot meet the requirement of section 202(e)(1) of the Act that she be "not married," her benefit can be no greater than 50 percent of her deceased husband's primary insurance amount under section 202(e)(4) of the Act.

P, a fully insured worker, died in October 1962 survived by W, his widow. W filed application and became entitled beginning October 1962 to widow's insurance benefits under section 202(e)(1) of the Social Security Act. In June 1964, W, then over age 60, married a worker who was not then entitled to social security benefits. In accordance with section 202(e)(1)(D) of the Act in effect at the time of this marriage, W's entitlement to benefits terminated with the month preceding the month in which she remarried, i.e., with May 1964. In May 1966, W obtained a divorce issued by a rabbi and thereupon filed an application for reentitlement to widow's insurance benefits.

Prior to enactment of the Social Security Amendments of 1965, a woman could become entitled to widow's insurance benefits on her deceased husband's earnings record only if (among other requirements and subject to certain exceptions) she had not remarried after her husband's death. Under section 202(e)(1) of the Act as amended, however, a woman may become entitled or reentitled to widow's insurance benefits (but no later than September 1965) ie, among other requirements, she is not then married, regardless of any intervening marriage after her deceased husband's death. The amount of the widow's insurance benefit of a widow so entitled to it, is equal to 82 1/2 percent of her deceased husband's primary insurance amount.

Under section 202(e)(4) of the Act, as amended, if a widow marries after attaining age 60, the marriage is deemed not to have occurred. Such a marriage will not preclude entitlement or reentitlement to widow's insurance benefits on the earnings record of the widow's deceased husband, nor will it terminate entitlement to such benefits already existing at the time of the marriage. (See SSR 66-37, C.B. 1966, p. 18.) While married, however, the widow will be entitled to a widow's insurance benefit of only 50 percent of her deceased husband's primary insurance amount.[*]

The foregoing provisions of section 202(e)(1) and 202(e)(4) of the Act as amended are effective for widow's insurance benefits beginning no earlier than September 1965, but in the case of individuals not entitled to benefits for August 1965, only on the basis of an application filed in or after July 1965.

W remarried in June 1964, after attaining age 60, and filed application for reentitlement to widow's insurance benefits in May 1966. Under section 202(e)(4) of the Act, W may be reentitled to widow's insurance benefits beginning with September 1965, but her benefit amount is limited to 50 percent of P's primary insurance amount. The issue presented in this case is whether W's benefit amount should be increased under section 202(e)(1) of the Act to 82 1/2 percent of P's primary insurance amount beginning with May 1966, the month in which she obtained the rabbinical divorce. This depends on whether, under applicable State law, the rabbinical divorce terminated W's marriage to her second husband, so that beginning with May 1966 W would be considered "not married" as required by section 202(e)(1).

The purported divorce between W and her second husband was obtained in New York, the matrimonial domicile was there, and the parties are now domiciliaries of New York. Thus the effect of the divorce will depend upon what recognition will be accorded it under New York law. Under New York law, a rabbinical divorce obtained in that State against a New York resident has no legal effect in that State. Chertok v. Chertok, 208 App. Div. 161, 203 N.Y. Supp. 163 (1st Dept. 1924). In the Chertok case, the Appellate Division stated:

The whole defense here is based on the rabbinical divorce obtained by defendant from a rabbi in the borough of Brooklyn, New York City, while defendant was domiciled in this city and under the jurisdiction of the laws of this state. The Constitution of the state of New York (Article 1 ยง9) provides:

"Nor shall any divorce be granted otherwise than by due judicial proceedings."

In view of this and the inhibition contained in section 1450 of the Penal Law [* * *] we must hold that the writing, purporting to be a divorce obtained from a rabbi in Brooklyn, cannot be recognized as having any effect in this state * * *. It would be a curious anomaly in the law to recognize as having any validity here an act expressly prohibited by statute and made punishable as a misdemeanor.

Since the rabbinical divorce was ineffective under New York law, W's remarriage is not terminated.

Accordingly, it is held that as long as W's marriage to her second husband continues, she is entitled to widow's insurance benefits only under section 202(e)(4) of the Act, and therefore her benefit amount must remain at 50 percent of P's primary insurance amount.


[*]Under section 202(e)(3) of the Act, if a widow, while entitled to widow's insurance benefits, marries a man who is entitled to childhood disability benefits, widower's insurance benefits, or parent's insurance benefits, the widow's benefit amount will not be reduced to 60 percent of the deceased husband's primary insurance amount, but will continue at the full rate of 82 1/2 percent.


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