TN 2 (04-13)

PR 07205.054 West Virginia

A. PR 13-042 Reply to your request for a legal opinion on whether Barbara, who receives a small retirement benefit on her own account, SSN ~, qualifies as a legal dependent of her spouse, Gerald, SSN~, in the state of West Virginia.

DATE: January 30, 2013

1. SYLLABUS

West Virginia case law establishes that a beneficiary’s wife is considered a legally-dependent spouse of the beneficiary.  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.  We conclude that spouses are legal dependents under West Virginia law. So long as the beneficiary’s current maintenance needs are met, his or her social security retirement benefits may be used to help support his or her spouse because the spouse is the legal dependent of the beneficiary. 

According to POMS GN00602.020, which is based on 20 C.F.R. §404.2040(c), "if the current maintenance needs of the beneficiary are met, the payee may use part of the benefits for the support of the beneficiary's legally dependent spouse...." Under this same POMS provision, legal dependency is determined by state law, in this case West Virginia law. Since Gerald current maintenance needs are being met, a portion of his monthly benefits may be used for Barbara’s support, as long as a wife may be legally dependent on her husband under West Virginia law.

2. OPINION

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


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1507205054
PR 07205.054 - West Virginia - 04/09/2013
Batch run: 04/09/2013
Rev:04/09/2013