QUESTION PRESENTED AND BRIEF ANSWER
               Title II benefits may be used to help support a legal dependent when the beneficiary’s
                  current maintenance needs are met. You have asked whether a spouse is a legal dependent
                  under West Virginia law.  We have determined that a spouse is a legal dependent under
                  West Virginia law. Therefore, so long as the beneficiary’s current maintenance needs
                  are met, the beneficiary’s social security benefits may be used to help support the
                  legally-dependent spouse.    
               
               BACKGROUND
               Gerald and Barbara are married. Gerald receives both veteran’s benefits and social
                  security retirement benefits. Gerald resides in a nursing home in West Virginia. 
                  The cost of his care is fully covered by Medicare and his veteran’s benefits. 
               
               Barbara is Gerald wife, guardian, and conservator. Barbara and Gerald file joint federal
                  tax returns. Barbara receives a small retirement benefit on her own account. 
               
               Barbara seeks to use Gerald social security benefits to pay for a vehicle (the vehicle
                  is in Barbara name), home repair and maintenance, and groceries.
               
                DISCUSSION
                Under 20 C.F.R. § 404.2040(c), “[i]f the current maintenance needs of the beneficiary
                  are met, the payee may use part of the payments for the support of the beneficiary’s
                  legally dependent spouse, child, and/or parent.”  Current maintenance needs include
                  the “cost incurred in obtaining food, shelter, clothing, medical care, and personal
                  comfort items.” 20 C.F.R. § 404.2040(a). Further, “[i]f a beneficiary is receiving
                  care in a Federal, State, or private institution because of mental or physical incapacity,
                  current maintenance includes the customary charges made by the institution, as well
                  as expenditures for those items [that] will aid in the beneficiary’s recovery or release
                  from the institution or expenses for personal needs [that] will improve the beneficiary’s
                  conditions while in the institution.” 20 C.F.R. § 404.2040(b). According to the facts
                  provided, Gerald current maintenance needs appear to be met.
               
               The regulations provide an example that is on-point:
               A disabled beneficiary receives a Veterans Administration (VA) benefit of $325 and
                  a Social Security benefit of $525.  The beneficiary resides in a VA hospital and his
                  VA benefits are sufficient to provide for all of his needs; i.e., cost of care and
                  personal needs. The beneficiary’s legal dependents—his wife and two children—have
                  a total income of $250 per month in Social Security benefits. However, they have expenses
                  of approximately $450 per month. Because the VA benefits are sufficient to meet the
                  beneficiary’s needs, it would be appropriate to use part of his Social Security benefits
                  to support his dependents.
               
               Id. Under POMS GN 00602.020, state law of the beneficiary’s resident state determines whether a spouse, child,
                  or parent qualifies as a legal dependent. See also Social Security Ruling 65-53.
               
               West Virginia case law establishes that Barbara is a legally-dependent spouse of Gerald. It
                  is firmly established that it is the duty of the husband to provide for the support
                  and maintenance of his wife during the marriage.  See, e.g., Butcher v. Butcher, 357 S.E.2d 226, 233 (W. Va. 1987); In re N~’ Estate, 107 S.E.2d 53, 55 (W. Va. 1959) (“The duty of the husband to support his wife is
                  basic in the law of this State. It existed at common law.”). “The duty of a husband
                  to maintain and support his wife while the marital relation exists, unless by her
                  conduct or for some other sufficient reason he is relieved of that duty, is firmly
                  established in this jurisdiction . . . .”  Snyder v. Lane, 65 S.E.2d 483, 485 (W. Va. 1951). 
               
               Therefore, although Barbara lives apart from her husband, she remains a legally-dependent
                  spouse of Gerald for as long as the marital relationship continues.  There is no evidence
                  that they do not live together because of any malfeasance by Barbara; Gerald resides
                  in a nursing some so that he can receive appropriate medical care. See Social Security Ruling 65-53 (spouse’s hospitalization is an involuntary separation
                  that does not change a spouse’s status as a legal dependent). Thus, so long as Gerald
                  current maintenance needs are met, part of his social security payments may be used
                  for the support of Barbara, his legally-dependent spouse. 
               
               Moreover, “[w]here a beneficiary may be held legally liable for family expenses,”
                  the beneficiary’s spouse is considered a legal dependent, even if the husband and
                  wife are not residing together. Social Security Ruling 65-53.  Under West Virginia
                  law, a husband and wife are jointly liable when any article purchased by either goes
                  to (1) the support of the family;
               
               (2) the joint benefit of both; (3) the reasonable apparel of either and their minor
                  child residing in the family; (4) the reasonable support of a spouse and child while
                  abandoned by the other spouse. W. Va. Code § 48-29-303(b). Further, “[a] husband and
                  wife are liable for the reasonable services of any domestic, laborer or other person
                  from which the family or both husband and wife benefit.” W. Va. Code § 48-29-303(c). 
                  Here, Barbara is a legally-dependent spouse because Gerald may be held legally liable
                  for the family’s expenses under West Virginia law.   The fact that Barbara receives
                  a small retirement benefit on her own account does not change this conclusion. In
                  the example provided in 20 C.F.R. § 404.2040(c), the legal dependents also received
                  benefits on their own accounts.
               
               CONCLUSION
               Spouses are legal dependents under West Virginia law.  So long as Gerald current maintenance
                  needs are met, his social security retirement benefits may be used to help support
                  Barbara because she is Gerald spouse and legal dependent. 
               
               Sincerely,
               Eric P. Kressman
               Regional Chief Counsel, Region III
               By: _____________
               M. Jared Littman