R, a fully insured worker, died in May 1958, survived by his widow, W, and two children, ages 8 and 10 years. W filed application for and was awarded mother's insurance benefits for herself and child's insurance benefits on behalf of her children effective May 1958, the month of R's death. In November 1961, due to her remarriage, W's benefit was terminated. However, on November 2, 1965, W was granted a decree of divorce in Nebraska from her second husband.
On May 2, 1966, W filed a new application for mother's insurance benefits on R's earnings record under section 202(g) of the Social Security Act, as amended in 1965, contending that she should be reentitled to mother's insurance benefits beginning with November 1965, the month in which the court rendered the decree of divorce.
Prior to the Social Security Amendments of 1965 (P.L. 89- 97), section 202(g)(1) of the Act provided in pertinent part that the widow of an individual who died fully or currently insured shall upon filing application be entitled to a mother's insurance benefit if (among other requirements not here at issue) she "has not remarried." Under this provision even a remarriage which subsequently was dissolved by death or divorce was a bar to a widow's being entitled or reentitled to mother's benefits on the insured individual's earnings record, i.e., even in such situations she was considered to have "remarried." Section 308(d)(3) of P.L. 89-97 amended section 202(g)(1)(A) of the Act by deleting the words "has not remarried" and substituting "is not married"; section 308(e) of P.L. 89-97 provides that this change is applicable with respect to monthly benefits beginning with September 1965. Also, in order for such provision to be applicable, section 308(e) of P.O. 89-97 requires an application for such benefits, filed in or after July 1965, in cases where entitlement did not otherwise exist for the month of August 1965. As pertinent to this case, the other requirements for entitlement in section 202(g)(1) were unchanged by P.L. 89-97.
The questions presented in this case are: (1) whether W may become reentitled to mother's insurance benefits despite her remarriage after R's death, and (2) if so, what is the effective date of her reentitlement.
The amended requirement of section 202(g)(1)(A) (which permits entitlement of a widow who "is not married") is applicable to claims both for initial entitlement and for reentitlement to mother's insurance benefits. Therefore, even though the widow remarries, the requirement is met if her subsequent marriage was ended by death, divorce, or annulment. All other requirements having been met, W may become reentitled to mother's insurance benefits on R's earnings record beginning with the first month after August 1965 in which she "is not married."
In this case the divorce was granted on November 2, 1965. However, under pertinent Nebraska law a divorce does not become final and operative until 6 months after trial and decision therein. Section 42-340, (Reissue) Revised Statutes of Nebraska, 1943. Thus, in this case the divorce became final after May 2, 1966, and beginning May 3, 1966, W was no longer married.
Accordingly, it is held that W is reentitled to mother's insurance benefits beginning with May 1966, the first month after August 1965 in which she was "not married" and otherwise met all requirements for entitlement. While an application for monthly insurance benefits may, under section 202(j)(1) of the Act, be retroactive up to 12 months prior to the month of application, entitlement cannot be established prior to the month in which all requirements are met.
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