SSR 85-1: SECTION 202(b)(4) (42 U.S.C. 402(b)(4)) WIFE'S INSURANCE BENEFITS -- GOVERNMENT PENSION OFFSET -- ONE-HALF SUPPORT -- INVESTMENT INCOME
20 CFR 404.408a
- Where the claimant and her husband each had sufficient income during the applicable support period to enable the claimant to use her income for investments rather than basic support items, held, both incomes were available for support purposes and both parties benefited from the income generated from the investments. Therefore, in deciding whether the exemption to Government pension offset was met, all of the income of each party, including each party's share of the investment income, was includable in determining whether the claimant had received at least one-half of her support from her husband at the time he became entitled to old-age insurance benefits.
The claimant retired from Federal employment on December 31, 1982, and became entitled to a Government pension in January 1983. Her husband became entitled to old-age insurance benefits (OAIB) in April 1983. On May 19, 1983, the claimant applied for wife's insurance benefits on her husband's earning record.
Under section 202(b)(4) of the Social Security Act (the Act), the claimant's wife's insurance benefits were subject to Government pension offset (GPO) unless she could establish, as provided in section 7 of Public Law 97-455, that she had received at least one-half of her support from her husband at the time he became entitled to OAIB. The 12 months immediately preceding the month in which her husband became entitled to OAIB was the period used in determining whether she met the one-half support requirement.
The claimant and her husband lived together during the support period; there were no other household members. During this period, the claimant received $35,288 in wages and $1,500 from her civil service annuity. The claimant's husband received $36,990 in wages during the support period. The claimant deposited her salary directly into a savings account at a bank, and her husband deposited his salary directly into a checking account at another bank. The couple also received $15,000 during the support period from various jointly held investments.
The total cost of the couple's support during the support period was $20,000 ($10,000 for the claimant and $10,000 for her husband). This figure includes food, shelter, basic utilities, clothing, ordinary medical expenses, and other customary items needed for maintenance. Since the household expenses and other support items were paid for from the husband's checking account, the claimant contended that her husband provided all of her support. She further contended that the money she withdrew from her savings account should not be considered in determining her support because it was used exclusively for investments.
Although the claimant's husband's money was used to pay their daily living expenses, the couple chose to have such an arrangement. This arrangement was not based on need or on a predetermined situation, e.g., alimony or child support. Each party benefited equally from all income coming into the household. The claimant's own income was available for her immediate support; she simply chose to use it for investments.
During the support period, the claimant's income was $44,288 ($36,788 in wages and retirement benefits plus her $7,500 share from investments) and her husband's income was $44,490 ($36,990 in wages plus his $7,500 share from investments). In view of the claimant's income ($44,288) and the cost of her support ($10,000) during this period, the claimant did not receive at least one-half of her support from her husband at the time he became entitled to OAIB. Consequently, the claimant's wife's insurance benefits were subject to GPO.