A wife may be legally dependent on her husband under Wisconsin law and should be eligible to receive a portion of her husband's social security benefits for her support, pursuant to 20 C.F.R. 404.2040(c) and POMS GN 00602.020.

This is in response to your recent memorandum asking whether a beneficiary's wife is considered legally dependent under Wisconsin law so that she may receive a portion of her husband's social security benefits to meet her ordinary and necessary living expenses. The relevant facts are as follows.

Vernon G~, the beneficiary, resides in a nursing home, while his wife Ruth continues to live in a private residence. All of Vernon's current maintenance needs are being met, with some funds left available. Vernon's representative payee wishes to know whether Ruth may receive payment from the unused portion of Vernon's benefits.

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 Wisconsin law. Since Vernon's current maintenance needs are being met, a portion of his monthly benefits may be used for Ruth's support, as long as a wife may be legally dependent on her husband under Wisconsin law. Cf. Casimir Sacko, ~, RA V (F~) to ARC Programs SSA V (P~), 4/21/87.

Under Social Security Ruling 65-53, where a beneficiary may be held legally liable for family expenses under state law, his or her spouse may be considered "legally dependent." Wisconsin has such a rule in its common law "rule of necessaries" by which "[t]he husband is under legal obligations [sic] to support his wife, and nothing but wrongful conduct on her part can free him such obligation." Sharpe Furniture, Inc. v. Buckstaff, 99 Wis.2d 114, 299 N.W.2d 219, 221 (1980), quoting Warner and Ryan v. Heiden, 28 Wis. 517, 519 (1871). In explaining this rule, the Wisconsin Supreme Court goes on to state in Sharpe:

The heart of this common law rule is a concern for the support and the sustenance of the family and the individual members thereof. The sustenance of the family unit is accorded a high order of importance in the scheme of Wisconsin law. It has been codified as a part of our statutes, see e.g., sec. 767.08, Stats., and it has been recognized as a part of our case law. See Zachman v. Zachman, 9 Wis.2d 335, 338, 101 N.W.2d 55 (1960).

Sharpe, 299 N.W.2d at 220.

As the Sharpe decision indicates, although the rule of necessaries is a common law rule which has long been recognized by the courts of Wisconsin, the Wisconsin statutes also reflect the principles that underlie the rule. Thus, for example, a husband or wife in Wisconsin may bring an action to compel legally required support and maintenance. Wis. Stat. Ann. §767.08 (West Supp. 1989) (cited in quotation from Sharpe, above). Similarly, Wis. Stat. Ann. §49.90 (West Interim Annotation Service No. 1, Feb. 1990) states that "[e]ach spouse has an equal obligation to support the other spouse as provided in this chapter." (Elsewhere the chapter provides that "[t]he ... spouse of any dependent person who is unable to maintain himself or herself shall maintain such dependent person, so far as able....")

Based on the foregoing analysis, we conclude that a wife may be legally dependent on her husband under Wisconsin law. Accordingly, Ruth G~ should be eligible to receive a portion of Vernon G~'s benefits for her support, pursuant to 20 C.F.R. §404.2040(c) and POMS GN00602.020.

Donna M. W~
Chief Counsel, Region V

By: ___________
John E. B~
Assistant Regional Counsel

Provided the current maintenance needs of the beneficiary are met. The payee may use part of the beneficiary's payments for the support of the beneficiary's legally dependent spouse, child, and/or parent. State law determines legal dependency. Under Wisconsin law children are not obligated to support their dependent parents. Therefore, a payee's use of beneficiary's funds for the support of a parent would not be proper.

You inquired what requirements a parent must meet to qualify as a legal dependent in the State of Wisconsin. You requested this opinion in order to determine whether a representative payee was properly using recipient's benefits under 20 C.F.R. § 404.2040(c).

DISCUSSION

The general issue is whether a representative payee may use a child's conserved benefits to support the child's parent. The applicable regulations provide that "[i]f the current maintenance needs of the beneficiary are being met, the payee may use part of the payments for the support of the beneficiary's legally dependent spouse, child, and/or parent." 20 C.F.R. § 404.2040(c). POMS GN 00602.020(B) provides that dependency is to be determined according to state law. Therefore, it is necessary to look at Wisconsin law in order to determine whether the conserved benefits of Lynn W., the representative payee, were being used properly.

Wisconsin law defines the term "dependent" differently depending on the context of the particular statute. For example, the definition of "dependent" used in the context of a Veterans' Affairs statute is "any person who resides with a veteran and is dependent upon the veteran for more than one-half of the person's support," but the definition of "dependent" in the context of Executions is "any individual, including a spouse, who requires and is actually receiving substantial support and maintenance from the debtor." Wisc. Stat. Ann. §§ 45.71(5)(b), 815.18(2)(d) (1997). We believe the most appropriate statutory reference concerns whether a child has an obligation to support his or her parent in Wisconsin in order to determine whether parents were considered dependents in the context of Wisconsin's general welfare statutes.

The Wisconsin Supreme Court has held that unless there is a common law duty to support a relative, legal dependency arises solely out of statutory provisions. In re Seely, 67 N.W.2d 836, 837 (1955). It is generally agreed that there is no common law duty on a child to support his or her indigent parent. See 79 Am. Jur. § 76 (1975). Prior to 1985, however, Wisconsin law provided that:

The parent, spouse and child of any dependent person (as defined in s. 49.01) who is unable to maintain himself shall maintain such dependent person, so far as able, in a manner approved by the authorities having charge of the dependent, or by the board in charge of the institution where such dependent person is . . .

Wisc. Stat. Ann. 52.01(1) (footnote added). The Wisconsin Supreme Court held that this provision was ineffective to confer a duty to support until a court had ordered a party to support his relative pursuant to Wisc. Stat. Ann. § 52.01(4). Seely, 67 N.W.2d at 838. Therefore, under that statutory language, a child had no obligation to support a dependent parent until after a court had ordered him or her to do so.

In 1985, Wisc. Stat. Ann. § 52.01 was amended and renumbered Wisc. Stat. Ann. § 49.90. See Wisc. Stat. Ann. § 52.01 (1997). Wisc. Stat. Ann. § 49.90 provides that:

The parent and spouse of any dependent person who is unable to maintain himself or herself shall maintain such dependent person, so far as able, in a manner approved by the authorities having charge of the dependent, or by the board in charge of the institution where such dependent person is; but no parent shall be required to support a child 18 years of age or older.

Wisc. Stat. Ann. § 49.90(1)(a) (1997). By amending the statute in 1985, the Wisconsin legislature therefore eliminated any obligation of a child to support a dependent parent.

A child no longer has any obligation to support his parent under Wisconsin law, and a duty to support a parent can arise only from statutory provisions. Children, therefore, are no longer obligated to support their dependent parents in Wisconsin. Therefore, unless a representative payee has been ordered by a court to pay support for his or her parent, he or she is under no legal obligation to pay such support, and the parent is not a legal dependent. Unless Lynn W. has been ordered by a court of law to support her parents, use of her benefits to support a parent does not appear to be proper use of conserved benefits pursuant to 20 C.F.R. § 404.2040(c).

CONCLUSION

For the above reasons, we have concluded that parents do not constitute legal dependents in Wisconsin unless a child has been ordered to support that parent by a court.

Thomas W. C~
Chief Counsel, Region V

By: ___________
Kelly C. C~
Assistant Regional Counsel