B-153746, DEC. 13, 1965

B-153746, DEC. 13, 1965

TO DR. HENRY M. SCHEER:

YOUR LETTER OF OCTOBER 26, 1965, REQUESTS FURTHER CONSIDERATION OF YOUR CLAIM FOR THE PROCEEDS OF SOCIAL SECURITY CHECK NO. 39,592,398, DATED SEPTEMBER 3, 1963, IN THE AMOUNT OF $43.80 WHICH WAS DRAWN TO THE ORDER OF MRS. RUTH BRODY, DECEASED.

YOU WERE ADVISED IN OUR LETTER OF OCTOBER 12, 1964, THAT ON THE BASIS OF INFORMATION RECEIVED HERE FROM THE SOCIAL SECURITY ADMINISTRATION, THERE WAS NO APPARENT REASON FOR SETTING ASIDE THE AWARD, OF THE PROCEEDS OF THE CHECK INVOLVED, TO MR. ABRAHAM BRODY, THE WIDOWER OF THE DECEASED. THE SOCIAL SECURITY ADMINISTRATION INFORMED US THAT THE EVIDENCE OF RECORD SHOWS THAT MR. ABRAHAM BRODY BECAME ENTITLED TO OLD-AGE INSURANCE BENEFITS EFFECTIVE JANUARY 1953. ON THE BASIS OF AN APPLICATION FILED ON AUGUST 15, 1957, HIS WIFE, RUTH BRODY, BECAME ENTITLED TO WIFE'S INSURANCE BENEFITS EFFECTIVE JULY 1957. AT THAT TIME, MRS. BRODY STATED THAT SHE WAS LEGALLY SEPARATED FROM HER HUSBAND BY MUTUAL CONSENT AS OF AUGUST 4, 1955; THAT THE SEPARATION WAS PERMANENT; AND THAT HE CONTRIBUTED $35 A MONTH TO HER SUPPORT UNTIL HIS ILLNESS IN 1956. WE WERE ALSO INFORMED THAT THE RECORDS OF THE DOMESTIC RELATIONS COURT OF THE CITY OF NEW YORK, FAMILY COURT DIVISION, COUNTY OF KINGS, NEW YORK, SHOW THAT MR. BRODY WAS ORDERED ON MARCH 7, 1956, TO CONTRIBUTE $35 A WEEK TO MRS. BRODY'S SUPPORT; AND THAT THIS ORDER WAS TEMPORARILY SUSPENDED ON OCTOBER 4, 1956.

YOU SAY THAT PAYMENT WAS MADE TO MR. BRODY,"IN SPITE OF THE FACT THAT" HE WAS LEGALLY SEPARATED FROM THE DECEDENT. A LEGAL SEPARATION DOES NOT IN ITSELF SIGNIFY AN ABSOLUTE DIVORCE, AND ONLY AN ABSOLUTE DIVORCE SEVERS THE MARITAL RELATIONSHIP. THEREFORE, A LEGAL SEPARATION, STANDING ALONE, WOULD NOT PRECLUDE PAYMENT TO MR. BRODY.

ALTHOUGH YOUR LETTER CONTAINS A QUOTATION FROM A WILL WHICH YOU SAY WAS EXECUTED BY THE DECEDENT, THE RECORD CONTAINS THE CLAIM FORM ORIGINALLY FILED BY YOU ON SEPTEMBER 27, 1963, ON WHICH YOU INDICATE THAT NO EXECUTOR WAS TO BE APPOINTED, LEAVING THE IMPLICATION THAT THERE WAS NO WILL. THIS CONNECTION, THE PROCEEDS OF UNCASHED SOCIAL SECURITY CHECKS ARE PAID TO THE EXECUTOR OR ADMINISTRATOR OF THE ESTATE IF AN EXECUTOR OR ADMINISTRATOR HAS BEEN APPOINTED.

WHERE, HOWEVER, THERE IS NO EVIDENCE THAT A LEGAL REPRESENTATIVE HAS BEEN OR WILL BE APPOINTED, OR WHERE THE LEGAL REPRESENTATIVE HAS BEEN DISCHARGED, PAYMENT MAY BE MADE TO THE SPOUSE IN ACCORDANCE WITH THE SOCIAL SECURITY ADMINISTRATION'S PROCEDURES.

IT, THEREFORE, APPEARS THAT THE PAYMENT OF THE PROCEEDS OF THE INVOLVED CHECK TO MR. BRODY WAS NOT PROCEDURALLY DEFECTIVE NOR IN CONTRAVENTION OF THE LAWS OF NEW YORK (THE STATE OF THE DECEDENT'S DOMICILE).

ADDITIONALLY, MRS. BRODY WAS NOT INSURED ON HER OWN EARNINGS RECORD AND, THEREFORE, NO BENEFIT FOR FUNERAL EXPENSES COULD BE PAID TO YOU ON THAT BASIS UNDER THE PROVISIONS OF 42 U.S.C. 402 (I).

A THOROUGH ANALYSIS OF YOUR LETTER OF OCTOBER 26, 1965, FAILS TO REVEAL ANY INFORMATION WHICH WOULD REFUTE THE EVIDENCE OF RECORD. THEREFORE, THE DISALLOWANCE OF YOUR CLAIM FOR THE PROCEEDS OF CHECK NO. 39,592,398, MUST BE SUSTAINED.