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
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.
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.
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.
Eric P. Kressman
Regional Chief Counsel, Region III
M. Jared Littman