Under Maryland law, the term “not criminally responsible” is used in place of the terms “insane” or “insanity.” An individual, therefore, adjudged “not criminally responsible” in the death of the wage earner has not committed a felonious or intentional homicide. Under Social Security's rules, such an individual may receive benefits based on the earnings record of the deceased wage earner.

QUESTION PRESENTED

On October 28, 2004, you asked us to advise you whether Chihoko F~ could receive widow's benefits based upon the earnings record of Jack F~, her deceased husband, after she was found to have murdered him, but was

CONCLUSION

We have reviewed the material that you provided and have researched the relevant provisions of Maryland law as it pertains to a finding of not criminally responsible. We have also considered the pertinent provisions of the Social Security regulations, Social Security Rulings and the POMS. We conclude that, in this case, Ms. F~ may receive widow's benefits based upon the earnings of her deceased husband.

BACKGROUND

In your memorandum, you indicated that Chihoko F~ applied for widow's benefits on May 25, 2004, based upon the earnings of her deceased husband, Jack F~ (Number Holder). The Number Holder died on August 28, 1989, due to a close range gunshot wound to the head. Ms. F~ was charged with murder one, murder two, attempted murder, assault with intent to murder, use of a handgun in commission of a felony and assault. On October 23, 1989, she entered a plea of not guilty by reason of insanity. By Order dated May 14, 1990, the Circuit Court of Maryland for Howard County found that Ms. F~ committed the crimes of murder one and murder two in the death of her husband. However, the Court also determined that she was not criminally responsible at the time that she committed the crimes. Ms. F~ was ordered to the Department of Health and Mental Hygiene for institutional care on May 14, 1990. She was conditionally released from Springfield Hospital Center on February 3, 1992, and she completed her conditional release period on February 5, 1995.

DISCUSSION

The regulations provide that an individual "may not become entitled to or continue to receive any survivor's benefits or payments on the earnings record of any person...if [the individual was] convicted of a felony or an act in the nature of a felony of intentionally causing that person's death." 20 C.F.R. § 404.305(b) (2004); see also POMS § GN 00304.060 (also providing for forfeiture of entitlement when an adult commits a felonious or intentional homicide of the number holder).

Under SSA's guidelines, the following types of cases are excluded from intentional homicide: (1) homicides which are the result of an accident; (2) homicides where the killing is the result of self defense; or (3) homicides where the claimant was insane or under the influence of drugs or alcohol (to the extent that he/she was unaware of the nature and consequences of the act) when he/she killed the number holder. POMS § GN 00304.065A; SSR 89-6c.

In this case, Ms. F~ was adjudged not criminally responsible for the murder of her husband.1 Under Maryland law, the term "not criminally responsible" is used in place of the terms "insane" or "insanity." See Djadi v. State, 528 A.2d 502, 503 at n.1 (Md.App. 1986).

Maryland's test for criminal responsibility provides that:

1. (a) 

   "[a] defendant is not criminally responsible for criminal conduct if, at the time of that conduct, the defendant, because of a mental disorder or mental retardation, lacks substantial capacity to:

   1. (1) 

      appreciate the criminality of that conduct; or

   2. (2) 

      conform that conduct to the requirements of law.

2. (b) 

   For purposes of this section, "mental disorder" does not include an abnormality that is manifested only by repeated criminal or otherwise antisocial conduct." Md. Code, Criminal Procedure § 3-109.

Applying these principles to the facts of this case, we believe that Ms. F~ is entitled to widow's benefits. The exclusion based upon insanity set forth in POMS § GN 00304.065A applies to Ms. F~ because she was found to be not criminally responsible, or insane, when she committed her husband's murder. As a result, her crime is not considered a felonious and intentional homicide for purposes of the applicable forfeiture provisions. 20 C.F.R. § 404.305(b); POMS § GN 00304.060. Accordingly, she is entitled to benefits as the widow of the Number Holder.

Donna L. C~

Regional Chief Counsel

By: ______________________

Maija P~

Assistant Regional Counsel