B-202553.OM, APR 21, 1981

B-202553.OM: Apr 21, 1981

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A DIVORCED SPOUSE WAS NOT ENTITLED TO SECONDARY SOCIAL SECURITY INSURANCE BENEFITS (I.E. MOTHER'S BENEFITS WERE MADE EQUAL TO THREE-FOURTHS OF THE PRIMARY INSURANCE AMOUNT OF THE DECEASED INDIVIDUAL. ONLY IF SHE IS THE MOTHER OF HIS CHILD. OR SHE WAS MARRIED TO HIM AT THE TIME THEY BOTH LEGALLY ADOPTED A CHILD UNDER THE AGE OF 18. THE LEGISLATIVE HISTORY OF SECTION 216 DOES NOT INDICATE WHY THE DEFINITION OMITTED A DIVORCED WOMAN WHOSE OWN SON OR DAUGHTER WAS ADOPTED BY THE FORMER HUSBAND WHILE THEY WERE MARRIED. (THIS APPARENT OVERSIGHT WAS CORRECTED BY A 1958 AMENDMENT WHICH ADDED DIVORCED WOMEN WHOSE CHILDREN WERE ADOPTED BY THE HUSBAND DURING THE MARRIAGE TO THE DEFINITION OF "FORMER WIFE DIVORCED.".

B-202553.OM, APR 21, 1981

SUBJECT: LEGISLATIVE HISTORY - SOCIAL SECURITY ACT - BENEFITS AVAILABLE TO DIVORCESS (FILE B-202553, CODE 105089)

AUDIT MANAGER, HRD - ELLIOTT BUSHLOW:

THIS RESPONDS TO RON YUCAS'S REQUEST FOR A DISCUSSION OF THE EVOLUTION OF THOSE PROVISIONS OF THE SOCIAL SECURITY ACT THAT PROVIDE BENEFITS TO DIVORCED SPOUSES. THE REQUESTED INFORMATION FOLLOWS.

PRIOR TO 1950, A DIVORCED SPOUSE WAS NOT ENTITLED TO SECONDARY SOCIAL SECURITY INSURANCE BENEFITS (I.E., BENEFITS BASED UPON THE EARNINGS CONTRIBUTIONS OF ANOTHER INDIVIDUAL). IN THAT YEAR, THE SOCIAL SECURITY ACT AMENDMENTS OF 1950, CH. 809, SECS. 101(A), 104(A), 64 STAT. 477 (1950), AMENDED SECTION 202(G) OF THE ACT (42 U.S.C. SEC. 402(G)) TO PROVIDE MOTHER'S INSURANCE BENEFITS TO EVERY "FORMER WIFE DIVORCED" OF AN INDIVIDUAL WHO DIED A FULLY OR CURRENTLY INSURED INDIVIDUAL. UNDER THE 1950 ACT, MOTHER'S BENEFITS WERE MADE EQUAL TO THREE-FOURTHS OF THE PRIMARY INSURANCE AMOUNT OF THE DECEASED INDIVIDUAL. AS USED IN THE 1950 LAW, "FORMER WIFE DIVORCED" REFERS TO A WOMAN DIVORCED FROM AN INDIVIDUAL, BUT ONLY IF SHE IS THE MOTHER OF HIS CHILD, SHE LEGALLY ADOPTED HIS CHILD, OR SHE WAS MARRIED TO HIM AT THE TIME THEY BOTH LEGALLY ADOPTED A CHILD UNDER THE AGE OF 18. SOCIAL SECURITY ACT SEC. 216(D), 42 U.S.C. SEC. 416(D). THE LEGISLATIVE HISTORY OF SECTION 216 DOES NOT INDICATE WHY THE DEFINITION OMITTED A DIVORCED WOMAN WHOSE OWN SON OR DAUGHTER WAS ADOPTED BY THE FORMER HUSBAND WHILE THEY WERE MARRIED. (THIS APPARENT OVERSIGHT WAS CORRECTED BY A 1958 AMENDMENT WHICH ADDED DIVORCED WOMEN WHOSE CHILDREN WERE ADOPTED BY THE HUSBAND DURING THE MARRIAGE TO THE DEFINITION OF "FORMER WIFE DIVORCED." PUB. L. NO. 85-840, SEC. 301(E), 72 STAT 1013 (1958).

UNDER THE 1950 AMENDMENTS, A FORMER WIFE DIVORCED WAS ENTITLED TO ANOTHER INDIVIDUAL'S INSURANCE BENEFITS ONLY IF SHE WAS NOT MARRIED, RECEIVED AT LEAST ONE-HALF OF HER SUPPORT FROM HER FORMER HUSBAND AT THE TIME OF HIS DEATH, AND HAD IN HER CARE A CHILD ENTITLED TO A CHILD'S INSURANCE BENEFIT.

THE 1950 AMENDMENTS PROVIDED THAT MOTHER'S INSURANCE BENEFITS PERMANENTLY TERMINATED UPON REMARRIAGE OF THE WIDOW OR FORMER WIFE DIVORCED. IN THE EVENT OF THE DEATH OF THE NEW HUSBAND, THE MOTHER COULD NOT QUALIFY FOR BENEFITS BASED UPON HER NEW HUSBAND'S EARNINGS UNLESS THE MARRIAGE LASTED A FULL YEAR OR THE COUPLE HAD A CHILD. HENCE, A FORMER WIFE DIVORCED WHOSE REMARRIAGE LASTED LESS THAN ONE YEAR AND RESULTED IN NO CHILDREN RECEIVED NO BENEFITS FROM EITHER HUSBAND'S ACCOUNT. ON THE OTHER HAND, A WOMAN AGED 62 OR OLDER WHOSE WIDOW'S INSURANCE BENEFITS WERE TERMINATED BY REMARRIAGE AND WHOSE NEW HUSBAND DIED WITHIN A YEAR OF REMARRIAGE REGAINED ELIGIBILITY FOR WIDOW'S BENEFITS BASED UPON HER FORMER HUSBAND'S EARNINGS.

PUBLIC LAW NO. 85-798, 72 STAT. 964 (1958) ADDRESSED, IN PART, THIS ASPECT OF WIDOW'S BENEFITS. THE 1958 LAW AMENDED SECTION 202(G) OF THE SOCIAL SECURITY ACT TO PROVIDE THAT A WIDOW OR FORMER WIFE DIVORCED WHO LOSES MOTHER'S INSURANCE BENEFIT DUE TO REMARRIAGE WOULD BECOME RE ENTITLED TO SUCH BENEFITS IF HER NEW HUSBAND DIES WITHIN ONE YEAR OF REMARRIAGE, PROVIDED THAT SHE IS NOT HIS "WIDOW" AS DEFINED BY THE ACT. IN RECOMMENDING THE ENACTMENT OF THIS AMENDMENT, THE SENATE COMMITTEE ON FINANCE NOTED THAT THE AMENDMENT:

"***WOULD GIVE MOTHERS PROTECTION EQUAL TO THAT ACCORDED WIDOWS UNDER SIMILAR CIRCUMSTANCES, AND SO WOULD FURTHER THE PURPOSES FOR WHICH MOTHER'S BENEFITS ARE PROVIDED - TO MAKE IT POSSIBLE FOR A MOTHER TO REMAIN AT HOME TO CARE FOR HER YOUNG CHILDREN."

S. REP. NO. 2167, 85TH CONG., 2D SESS. 2, REPRINTED IN 1958 U.S.C. CONG. & AD. NEWS 4018, 4019.

THE SOCIAL SECURITY AMENDMENTS OF 1958, PUB. L. NO. 85-840, SEC. 303, 72 STAT. 1013 (1958), FURTHER AMENDED SECTION 202(G) TO PROVIDE THAT MOTHER'S BENEFITS WHICH WERE TERMINATED BY REMARRIAGE, SHALL BE REINSTATED IF THE NEW HUSBAND DIES WITHIN ONE YEAR OF REMARRIAGE, PROVIDED THAT THE MOTHER CANNOT BECOME ENTITLED TO MOTHER'S BENEFITS ON HIS EARNINGS WHEN HE DIES. THIS LAST PROVISO REPLACES THE REQUIREMENT IN PUB. L. 85-798, SUPRA, THAT THE MOTHER NOT BE THE SECOND HUSBAND'S "WIDOW" AS DEFINED BY THE ACT. THIS CHANGE WAS MADE BECAUSE:

"*** IN MOST CASES THE WIDOW WOULD HAVE BEEN THE 'WIDOW' OF THE NEW HUSBAND AS DEFINED IN THE LAW BUT COULD NOT RECEIVE MOTHER'S INSURANCE BENEFITS ON HIS EARNINGS BECAUSE SHE COULD NOT MEET ANOTHER REQUIREMENT FOR ENTITLEMENT TO MOTHER'S INSURANCE BENEFITS - THAT SHE HAVE HER SECOND HUSBAND'S CHILD IN HER CARE." S. REP. NO. 2385, 85TH CONG., 2D SESS., REPRINTED IN 1958 U.S.C. CONG. & AD. NEWS 4218, 4278.

IN SEC. 307 OF THE 1958 AMENDMENTS, CONGRESS ALSO RECOGNIZED AND REMEDIED A PROBLEM RELATING TO REMARRIAGE OF SECONDARY BENEFICIARIES:

"WHEN A SECONDARY BENEFICIARY MARRIES, SUCH PERSON'S BENEFIT IS TERMINATED UNDER PRESENT LAW. IF HE MARRIES A PERSON WHO IS OR WHO WILL BECOME ENTITLED TO AN OLD-AGE INSURANCE BENEFIT, HE MAY QUALIFY FOR A NEW BENEFIT BASED ON THE EARNINGS OF THE NEW SPOUSE. BUT IF THE NEW SPOUSE IS ALSO RECEIVING A SECONDARY BENEFIT, THE BENEFITS OF BOTH ARE TERMINATED AND ORDINARILY NEITHER BENEFICIARY CAN BECOME ENTITLED TO NEW BENEFITS. THE COMMITTEE-APPROVED BILL, LIKE THE HOUSE BILL, WOULD ELIMINATE THE HARDSHIP ***"

S. REP. NO. 2388, 85TH CONG., 2D SESS. 16, REPRINTED IN 1958 U.S.C. CONG. & AD. NEWS 4218, 4233.

SECTION 307(D) OF PUB. L. NO. 85 840 THUS AMENDED SECTION 202(G) OF THE ACT TO PROVIDE THAT A MOTHER'S INSURANCE BENEFITS SHALL NOT BE TERMINATED BY HER REMARRIAGE IF THAT REMARRIAGE IS TO A PERSON WHO IS ENTITLED TO OLD-AGE, DISABILITY, WIDOWER'S, PARENT'S OR DISABLED CHILD'S INSURANCE BENEFITS. IF REMARRIAGE IS TO A PERSON RECEIVING DISABILITY BENEFITS, HER BENEFITS TERMINATE UPON THE CESSATION OF HER HUSBAND'S BENEFITS UNLESS HE DIES OR BECOMES ENTITLED TO OLD AGE BENEFITS. IF REMARRIAGE IS TO A PERSON RECEIVING DISABLED CHILD'S BENEFITS, HER BENEFITS TERMINATE UPON THE CESSATION OF HIS BENEFITS UNLESS THE SPOUSE DIES.

THE SOCIAL SECURITY AMENDMENTS OF 1958 ALSO EASED THE DEPENDENCY REQUIREMENT FOR THE RECEIPT OF MOTHER'S BENEFITS. AS NOTED ABOVE, THE 1950 AMENDMENT REQUIRED, AMONG OTHER THINGS, THAT THE FORMER WIFE DIVORCED BE RECEIVING, PURSUANT TO AGREEMENT OR COURT ORDER, AT LEAST ONE-HALF OF HER SUPPORT FROM HER FORMER HUSBAND AT THE TIME OF HIS DEATH. UNDER SECTION 205(F) OF PUB. L. NO. 85-840, A FORMER WIFE DIVORCED MAY BE ELIGIBLE TO RECEIVE BENEFITS IF SHE CAN EITHER MEET THE ONE-HALF SUPPORT REQUIREMENT OR IF HER FORMER HUSBAND HAD A PERIOD OF DISABILITY WHICH DID NOT END PRIOR TO HIS DEATH.

THE SOCIAL SECURITY AMENDMENTS OF 1965, PUB. L. NO. 89-97, SEC. 308, 79 STAT. 286 (1965), EXPANDED THE BENEFITS AVAILABLE TO DIVORCED WIVES TO INCLUDE WIFE'S AND WIDOW'S INSURANCE BENEFITS. THESE AMENDMENTS REPRESENTED A GROWING RECOGNITION OF THE FINANCIAL PROBLEMS BESETTING DIVORCED WIVES:

"IT IS NOT UNCOMMON FOR A MARRIAGE TO END IN DIVORCE AFTER MANY YEARS, WHEN THE WIFE IS TOO OLD TO BUILD UP A SUBSTANTIAL SOCIAL SECURITY EARNINGS RECORD EVEN IF SHE CAN FIND A JOB. BUT UNDER PRESENT LAW A WIFE'S RIGHT TO BENEFITS ON HER HUSBAND'S EARNINGS RECORD GENERALLY ENDS WITH A DIVORCE. UNDER THE PRESENT SOCIAL SECURITY LAW, THE ONLY BENEFITS PROVIDED FOR A DIVORCED WOMAN ARE MOTHER'S INSURANCE BENEFITS, AND THEY ARE PAYABLE ONLY IF SHE HAS A CHILD OF THE DECEASED WORKER IN HER CARE AND THE CHILD IS GETTING BENEFITS ON THE BASIS OF HIS DECEASED FATHER'S EARNINGS, IF SHE HAS NOT REMARRIED, AND IF SHE HAD BEEN GETTING AT LEAST ONE-HALF OF HER SUPPORT FROM HER FORMER HUSBAND UNDER A COURT ORDER OR AGREEMENT AT THE TIME OF HIS DEATH. A DIVORCED WIFE WITHOUT A CHILD IN HER CARE CANNOT GET BENEFITS EVEN THOUGH SHE HAD BEEN DEPENDENT UPON THE WORKER FOR MUCH OF HIS WORKING LIFETIME AND HE WAS CONTRIBUTING TO HER SUPPORT WHEN HE RETIRED OR DIED. *** THE SOCIAL SECURITY AMENDMENTS OF 1965 WOULD PROVIDE MAINLY FOR WOMEN WHO HAVE SPENT THEIR LIVES IN MARRIAGES THAT ARE DISSOLVED WHEN THEY ARE FAR ALONG IN YEARS - ESPECIALLY HOUSEWIVES WHO HAVE NOT BEEN ABLE TO WORK AND EARN SOCIAL SECURITY BENEFIT PROTECTION OF THEIR OWN - FROM LOSS OF BENEFIT RIGHTS THROUGH DIVORCE."

H. R. REP. NO. 213, 89TH

CONG. 1ST SESS. 93, 94 (1965). THE 1965 AMENDMENTS DEFINE THE TERM "DIVORCED WIFE," AS USED IN THE WIFE'S BENEFIT PROVISION, AS "A WOMAN DIVORCED FROM AN INDIVIDUAL, BUT ONLY IF SHE HAD BEEN MARRIED TO SUCH INDIVIDUAL FOR A PERIOD OF 20 YEARS IMMEDIATELY BEFORE THE DATE OF THE DIVORCE BECAME EFFECTIVE."

UNDER THE 1965 AMENDMENTS WIFE'S INSURANCE BENEFITS, WHICH ARE EQUAL TO ONE-HALF OF THE PRIMARY INSURANCE AMOUNT OF THE HUSBAND OR FORMER HUSBAND, ARE AVAILABLE TO A WIFE OR A DIVORCED WIFE WHO IS EITHER 62 OR MORE YEARS OF AGE OR WHO HAS IN HER CARE A CHILD ENTITLED TO A CHILD'S INSURANCE BENEFIT. SOCIAL SECURITY ACT SEC. 202(B), 42 U.S.C. SEC. 402(B). DIVORCED WIFE IS ELIGIBLE ONLY IF SHE IS NOT MARRIED. A DIVORCED WIFE MUST ALSO MEET ONE OF THE FOLLOWING SUPPORT REQUIREMENTS:

- RECEIPT OF AT LEAST ONE-HALF OF HER SUPPORT FROM HER FORMER HUSBAND;

- RECEIPT OF SUBSTANTIAL CONTRIBUTIONS FROM HER FORMER HUSBAND PURSUANT TO A WRITTEN AGREEMENT;

- EXISTENCE OF A COURT ORDER FOR SUBSTANTIAL CONTRIBUTIONS TO HER SUPPORT FROM HER FORMER HUSBAND.

A DIVORCED WIFE'S ENTITLEMENT TO WIFE'S BENEFITS TERMINATES UPON REMARRIAGE TO AN INDIVIDUAL OTHER THAN HER FORMER HUSBAND, UNLESS THAT INDIVIDUAL IS ENTITLED TO WIDOWER'S, PARENT'S, OR DISABLED CHILD'S BENEFITS.

THE UNMARRIED, 62 YEARS OR OLDER, WIDOW OR SURVIVING DIVORCED WIFE OF AN INDIVIDUAL WHO DIED FULLY INSURED MAY BE ELIGIBLE FOR WIDOW'S INSURANCE BENEFITS. SOCIAL SECURITY ACT SEC. 202(E), 42 U.S.C. SEC. 402(E). WIDOW'S BENEFITS ARE EQUAL TO THE PRIMARY INSURANCE AMOUNT OF THE DECEASED INDIVIDUAL. A "SURVIVING DIVORCED WIFE" IS A WOMAN DIVORCED FROM AN INDIVIDUAL WHO HAS DIED AND TO WHOM SHE HAD BEEN MARRIED FOR 20 YEARS IMMEDIATELY BEFORE THE DIVORCE. TO RECEIVE A WIDOW'S BENEFIT, A SURVIVING DIVORCED WIFE WHO WAS NOT ENTITLED TO WIFE'S BENEFITS AT THE TIME OF HER FORMER HUSBAND'S DEATH, MUST MEET SUPPORT REQUIREMENTS IDENTICAL TO THE SUPPORT REQUIREMENTS OF WIFE'S BENEFITS DELINEATED ABOVE.

SECTION 303(A) OF THE SOCIAL SECURITY ACT (42 U.S.C. SEC. 403(A)) LIMITS THE TOTAL AMOUNT OF BENEFITS WHICH A FAMILY MAY RECEIVE ON THE BASIS OF THE CONTRIBUTIONS OF AN INDIVIDUAL WAGE EARNER. THE 1965 AMENDMENTS PROVIDE THAT WIFE'S AND WIDOW'S INSURANCE BENEFITS PAID TO A DIVORCED WIFE OR A SURVIVING DIVORCED WIFE ARE NOT SUBJECT TO THIS LIMITATION. ALSO, BENEFITS PAID TO A DIVORCED WIFE OR A SURVIVING DIVORCED WIFE DO NOT COUNT IN DETERMINING THE TOTAL BENEFITS PAYABLE TO OTHERS. THE LEGISLATIVE HISTORY IS UNCLEAR AS TO WHETHER THE PURPOSE OF THIS PROVISION IS TO AVOID REDUCTION OF THE BENEFITS PAYABLE TO DIVORCED WIVES AND SURVIVING DIVORCED WIVES, TO AVOID REDUCTION OF THE BENEFITS PAYABLE TO OTHER MEMBERS OF THE WAGE-EARNER'S FAMILY, OR BOTH.

THE 1965 AMENDMENTS ALSO ALTERED THE MOTHER'S INSURANCE BENEFITS SUPPORT REQUIREMENT TO CONFORM WITH THE SUPPORT REQUIREMENT ESTABLISHED FOR WIFE'S AND WIDOW'S INSURANCE BENEFITS. THUS, MOTHER'S BENEFITS ARE AVAILABLE TO A SURVIVING DIVORCED MOTHER ONLY IF, AT THE TIME OF HER FORMER HUSBAND'S DEATH, SHE RECEIVED FROM HER FORMER HUSBAND ONE-HALF OF HER SUPPORT OR SUBSTANTIAL CONTRIBUTIONS PURSUANT TO A WRITTEN AGREEMENT, OR IF THERE EXISTED A COURT ORDER FOR SUBSTANTIAL CONTRIBUTIONS FROM HER HUSBAND.

IN 1972, CONGRESS ELIMINATED THE REQUIREMENT THAT A DIVORCED WIFE, SURVIVING DIVORCED WIFE OR SURVIVING DIVORCED MOTHER DEMONSTRATE SOME FORM OF SUPPORT BY HER FORMER SPOUSE IN ORDER TO RECEIVE WIFE'S, WIDOW'S OR MOTHER'S INSURANCE BENEFITS. PUB. L. NO. 92-603, SEC. 114, 86 STAT. 1329 (1972). CONGRESS ELIMINATED THE SUPPORT REQUIREMENT BECAUSE IT WAS:

"*** CONCERNED THAT THERE ARE A NUMBER OF DIVORCED WOMEN WHO CANNOT QUALIFY FOR SOCIAL SECURITY BENEFITS BECAUSE THEY CANNOT MEET THE SUPPORT REQUIREMENT IN THE LAW. *** IN ORDER TO QUALIFY FOR ANY OF THESE BENEFITS A DIVORCED WOMAN IS REQUIRED TO SHOW THAT: (1) SHE WAS RECEIVING AT LEAST ONE-HALF OF HER SUPPORT FROM HER FORMER HUSBAND; (2) SHE WAS RECEIVING SUBSTANTIAL CONTRIBUTIONS FROM HER FORMER HUSBAND PURSUANT TO A WRITTEN AGREEMENT; OR (3) THERE WAS A COURT ORDER IN EFFECT PROVIDING FOR SUBSTANTIAL CONTRIBUTIONS TO HER SUPPORT BY HER FORMER HUSBAND.

"IN SOME STATES THE COURTS ARE PROHIBITED FROM PROVIDING FOR ALIMONY, AND IN THESE STATES A DIVORCED WOMAN IS PRECLUDED FROM MEETING THE THIRD SUPPORT REQUIREMENT. EVEN IN STATES WHICH ALLOW ALIMONY, THE COURT MAY HAVE DECIDED AT THE TIME OF THE DIVORCE THAT THE WIFE WAS NOT IN NEED OF FINANCIAL SUPPORT. MOREOVER, A DIVORCED WOMAN'S ELIGIBILITY FOR SOCIAL SECURITY BENEFITS MAY DEPEND ON THE ADVICE SHE RECEIVED AT THE TIME OF HER DIVORCE. IF A WOMAN ACCEPTED A PROPERTY SETTLEMENT IN LIEU OF ALIMONY, SHE COULD, IN EFFECT, HAVE DISQUALIFIED HERSELF FOR DIVORCED WIFE'S, DIVORCED WIDOW'S, OR SURVIVING DIVORCED MOTHER'S BENEFITS.

"THE INTENT OF PROVIDING BENEFITS TO DIVORCED WOMEN IS TO PROTECT WOMEN WHOSE MARRIAGES ARE DISSOLVED WHEN THEY ARE FAR ALONG IN YEARS - PARTICULARLY HOUSEWIVES WHO HAVE NOT BEEN ABLE TO WORK AND EARN SOCIAL SECURITY PROTECTION OF THEIR OWN. THE HOUSE WAYS AND MEANS COMMITTEE BELIEVES THAT THE SUPPORT REQUIREMENTS OF THE LAW HAVE OPERATED TO DEPRIVE SOME DIVORCED WOMEN OF THE PROTECTION THEY SHOULD HAVE RECEIVED ***."

H. R. REP. NO. 92-231, 92D CONG., 2D SESS. U.S.C. CONG. & AD. NEWS 4989, 5041.

UNDER SECTION 216(C) AND (G) OF THE SOCIAL SECURITY ACT, 42 U.S.C. SEC. 416(C), (G), AN INDIVIDUAL MAY BE DEEMED THE WIDOW OR WIDOWER OF A WAGE EARNER BY MEETING ONE OF A NUMBER OF ALTERNATIVE REQUIREMENTS. ONE SUCH REQUIREMENT IS THAT THE INDIVIDUAL WAS MARRIED TO THE WAGE EARNER AT LEAST 9 MONTHS IMMEDIATELY PRIOR TO THE DAY ON WHICH THE WAGE EARNER DIED. THE PURPOSE OF THIS REQUIREMENT IS TO PRECLUDE PAYMENT OF BENEFITS WHERE THE MARRIAGE IS UNDERTAKEN SOLELY TO SECURE BENEFITS. SEE H. R. REP. NO. 92-231 92D CONG., 2D SESS. U.S.C. CONG. & AD. NEWS 4989, 5041.

SECTION 155 OF THE 1972 AMENDMENTS PROVIDES THAT THIS REQUIREMENT SHALL BE SATISFIED IF THE INDIVIDUAL DIVORCED THE WAGE-EARNER AND SUBSEQUENTLY MARRIED THE SAME WAGE-EARNER FOR A PERIOD OF FEWER THAN 9 MONTHS PROVIDED THAT THE 9-MONTH REQUIREMENT WOULD HAVE BEEN SATISFIED AT THE TIME OF DIVORCE IF THE MARRIAGE HAD BEEN TERMINATED BY THE DEATH OF THE WAGE- EARNER RATHER THAN BY DIVORCE. THIS PROVISION DOES NOT APPLY, HOWEVER, WHERE THE SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES DETERMINES THAT AT THE TIME OF REMARRIAGE, THE WAGE EARNER COULD NOT REASONABLY HAVE BEEN EXPECTED TO LIVE FOR 9 MONTHS.

THE SOCIAL SECURITY AMENDMENTS OF 1977, PUB. L. NO. 95-216 SEC. 337, 91 STAT. 1509 (1977), EXPANDED THE CLASS OF DIVORCED WOMEN ENTITLED TO WIFE'S AND WIDOW'S BENEFITS BY THE REDEFINING "DIVORCED WIFE" AND "SURVIVING DIVORCED WIFE" TO INCLUDE WOMEN WHOSE MARRIAGE TO A WAGE EARNER LASTED 10 YEARS, RATHER THAN 20 YEARS. THIS CHANGE REFLECTS A CONGRESSIONAL CONCERN THAT NUMEROUS OLDER DIVORCED PEOPLE MARRIED FEWER THAN 20 YEARS MAY REACH OLD AGE WITHOUT ANY SOCIAL SECURITY PROTECTION. SEE H. R. REP. NO. 95-702, 95TH CONG. 1ST SESS. 48 (1977).

SUMMARY OF CURRENT PROVISIONS

THE SOCIAL SECURITY ACT AS CURRENTLY AMENDED PROVIDES MOTHER'S, WIFE'S AND WIDOW'S BENEFITS TO CERTAIN DIVORCED WOMEN. THE ACT DEFINES A "SURVIVING DIVORCED MOTHER" AS A WOMAN DIVORCED FROM AN INDIVIDUAL WHO HAS DIED, PROVIDED THAT SHE IS THE MOTHER OF THE DECEDENT'S CHILD, SHE ADOPTED HIS CHILD OR HE ADOPTED HER CHILD DURING THE MARRIAGE, OR THEY BOTH ADOPTED A CHILD DURING THE MARRIAGE. 42 U.S.C. 416(D)(3).

A SURVIVING DIVORCED MOTHER MAY RECEIVE A MOTHER'S INSURANCE BENEFIT ON THE BASIS OF HER DECEASED FORMER HUSBAND'S EARNINGS IF, AMONG OTHER THINGS, SHE IS NOT MARRIED, SHE IS NOT ENTITLED TO WIDOW'S BENEFITS, AND SHE HAS IN HER CARE HER OWN CHILD, OR A LEGALLY ADOPTED CHILD, WHO IS ENTITLED TO A CHILD'S INSURANCE BENEFIT ON THE BASIS OF THE FORMER HUSBAND'S WAGES. SHE NEED NOT HAVE BEEN SUPPORTED BY HER FORMER HUSBAND AT THE TIME OF HIS DEATH. THE MOTHER'S BENEFIT IS EQUAL TO THREE-FOURTHS OF THE PRIMARY INSURANCE AMOUNT OF THE DECEASED FORMER HUSBAND. 42 U.S.C. 402(G).

MOTHER'S INSURANCE BENEFITS TERMINATE WHEN THE SURVIVING DIVORCED MOTHER DIES, REMARRIES, BECOMES ENTITLED TO A WIDOW'S INSURANCE BENEFIT OR CEASES TO HAVE IN HER CARE A CHILD ENTITLED TO A CHILD'S INSURANCE BENEFIT BASED UPON THE FORMER HUSBAND'S EARNINGS. REMARRIAGE TO A PERSON ENTITLED TO OLD-AGE, DISABILITY, WIDOWER'S, PARENT'S OR DISABLED CHILD'S INSURANCE BENEFITS, HOWEVER, DOES NOT TERMINATE MOTHER'S BENEFITS. 42 U.S.C. 402(G).

A "DIVORCED WIFE," DEFINED AS A WOMAN DIVORCED FROM AN INDIVIDUAL AFTER AT LEAST 10 YEARS OF MARRIAGE, 42 U.S.C. 416(D) (1), MAY BE ELIGIBLE FOR A WIFE'S INSURANCE BENEFIT EQUAL TO ONE-HALF THE PRIMARY INSURANCE AMOUNT OF THE FORMER HUSBAND. AN UNMARRIED DIVORCED WIFE IS ENTITLED TO A WIFE'S BENEFIT IF, AMONG OTHER THINGS, SHE IS EITHER 62 OR MORE YEARS OF AGE OR HAS IN HER CARE A CHILD ENTITLED TO A CHILD'S INSURANCE BENEFIT. BENEFITS TERMINATE UPON REMARRIAGE TO AN INDIVIDUAL OTHER THAN THE FORMER HUSBAND, UNLESS THAT INDIVIDUAL IS ENTITLED TO WIDOWER'S, PARENT'S, OR DISABLED CHILD'S BENEFITS. 42 U.S.C. 402(B).

A "SURVIVING DIVORCED WIFE," DEFINED AS A WOMAN DIVORCED FROM AN INDIVIDUAL WHO HAS DIED IF SHE WAS MARRIED TO THE INDIVIDUAL FOR AT LEAST 10 YEARS BEFORE THE DIVORCE, 42 U.S.C. 416(D)(2), MAY BE ELIGIBLE FOR A WIDOW'S INSURANCE BENEFIT EQUAL TO THE PRIMARY INSURANCE AMOUNT OF HER FORMER HUSBAND. AN UNMARRIED SURVIVING DIVORCED WIFE WHO MEETS ONE OF A NUMBER OF AGE REQUIREMENTS IS ENTITLED TO A WIDOW'S BENEFIT IF SHE IS NOT ENTITLED TO AN OLD-AGE INSURANCE BENEFIT WHICH EXCEEDS OR IS EQUAL TO THE PRIMARY INSURANCE AMOUNT OF THE FORMER HUSBAND. BENEFITS TERMINATE WHEN THE SURVIVING DIVORCED WIFE BECOMES ENTITLED TO OLD-AGE BENEFITS EQUAL TO OR GREATER THAN THE FORMER HUSBAND'S PRIMARY INSURANCE AMOUNT, OR UPON REMARRIAGE TO AN INDIVIDUAL WHO IS NOT ENTITLED TO WIDOWER'S, PARENT'S, OR DISABLED CHILD'S BENEFITS. 42 U.S.C. 402(E).

NEITHER THE WIFE'S BENEFITS TO WHICH A DIVORCED WIFE IS ENTITLED, NOR THE WIDOW'S BENEFIT TO WHICH A SURVIVING DIVORCED WIFE IS ENTITLED IS LIMITED BY THE MAXIMUM FAMILY BENEFIT LIMITATION. ALSO, SUCH BENEFITS DO NOT COUNT IN DETERMINING THE TOTAL BENEFITS PAYABLE TO MEMBERS OF THE INSURED INDIVIDUAL'S FAMILY. 42 U.S.C. 403(A)(3).

WE TRUST THE FOREGOING IS RESPONSIVE TO YOUR NEEDS.

DIGEST

CURRENTLY, DIVORCED WOMEN ARE ELIGIBLE FOR MOTHER'S, WIFE'S, AND WIDOW'S INSURANCE BENEFITS UNDER SOCIAL SECURITY ACT. BENEFITS ARE AVAILABLE WITHOUT A SHOWING OF SUPPORT BY FORMER SPOUSE AND ARE NOT SUBJECT TO MAXIMUM FAMILY BENEFIT LIMITATION. EVALUATION OF PROVISIONS ENACTED OVER LAST 30 YEARS TO PREVENT LOSS OF PROTECTION BY ELDERLY WOMEN WHOSE MARRIAGES HAVE DISSOLVED, IS DISCUSSED.