20 CFR 404.1105(b)

SSR 67-55

Where a worker and a woman were married in 1923, were divorced in 1938 after 15 years of marriage, remarried each other in 1941, but were divorced a second time in 1947, and where the worker died in 1953, and in September 1965 the divorced woman filed application for widow's insurance benefits as the worker's "surviving divorced wife," held, the divorced woman was not married to the worker for 20 years immediately before either divorce became effective, and therefore she is not the worker's "surviving divorced wife" within the meaning of section 216(d)(2) of the Act and is not entitled to widow's insurance benefits.

R, the worker, and W, his wife, were married in 1923. W was granted an absolute divorce in December 1938, after 15 years of marriage. The couple remarried each other in April 1941; however, nearly 6 years later, in February 1947, W again obtained a decree of final divorce. R died in March 1953, fully insured for social security purposes. In September 1965, W, then age 60, filed application for widow's insurance benefits as the "surviving divorced wife" of R.

Under the Social Security Act as in effect prior to the enactment of Public Law 89-97 (the Social Security Amendments of 1965) a divorced woman could become entitled, under certain conditions, on the earnings record of her former husband to mother's insurance benefits under section 202(g) of the Act, but could not become entitled to wife's insurance benefits under section 202(b) or widow's insurance benefits under section 202(e). However, the amended Act provides in Section 202(e)(1), as here pertinent, that the divorced wife of a worker who died fully insured may become entitled to widow's insurance benefits on his earnings record if, in addition to other requirements not here at issue, she is his "surviving divorced wife" as defined in section 216(d) of the Act.

Section 216(d)(2) of the Act as amended in 1965 provides that:

The term "surviving divorced wife" means a woman divorced from an individual who has died, but only if she had been married to the individual for a period of 20 years immediately before the date the divorce became effective. (Emphasis added.)

W's first marriage to R lasted 15 years and her second marriage nearly 6 years. The question thus presented for decision is whether W, who was married to R for more than 20 years in total but not in each of the 20 calendar years immediately preceding their second divorce, meets the definition of "surviving divorced wife" within the meaning of section 216(d)(2) of the Act.

Section 404.1105(b) of Social Security Administration Regulations No. 4 (20 CFR 404.1105(b)), as amended in 1967, defines the term "surviving divorced wife" as follows:

(b) "Surviving divorced wife" means a claimant whose marriage to the deceased individual on whose earnings record her application is based had been terminated by a final divorce on or after the 20th anniversary of the marriage: Provided, That, if she was married to and divorced from him more than once, she was married to him in each calendar year of the period beginning 20 years immediately before the date any divorce became final and ending with the year that divorce became final.

In the present case, W's second divorce from R in 1947 became final more than 20 years after her first marriage to him in 1923. However, after their first divorce in 1938, R and W did not remarry each other until 1941; therefore, they were not married to each other in the calendar years 1939 and 1940, and accordingly, they were not married in each year of the 20-year period ending with February 1947, the month when their second divorce became final. Furthermore, neither the first nor the second marriage existed for a period of 20 years immediately before the effective date of the divorce which dissolved it.

Accordingly, it is held that W is not R's "surviving divorced wife" as defined by section 216(d)(2) of the Act, and therefore she is not entitled to widow's insurance benefits on his earnings record.

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