Section 414 of P.L. 108-203, enacted on March 2, 2004, created an additional situation in which the 9-month duration of marriage requirement is deemed to be met, for surviving spouses only. Effective for applications filed in or after March 2004, the 9-month requirement is deemed to be met if SSA determines that the surviving spouse claimant and the deceased NH would have been married for at least 9 months, except that it was unlawful for the number holder (NH) (under the law of the State where they were domiciled) to divorce the prior spouse by reason of the prior spouse’s institutionalization because of mental incompetence or a similar incapacity. The prior spouse must have remained institutionalized until the time of their death, and the NH must have married the surviving spouse claimant within 60 days after the prior spouse’s death.

For purposes of this provision, we will assume any mental condition serious enough for institutionalization meets the requirements of “mental incompetence or similar incapacity.” See GN 00305.115B.2.b. and GN 00305.115B.2.d. for development guidelines.

1. a. 

   We will consider it unlawful under applicable State law for the NH to have divorced the prior spouse, and the new duration-of- marriage exception will be met, when:

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     applicable State law during the relevant time period allowed divorce based on fault; and

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     grounds for fault did not include institutionalization due to mental incompetence or similar incapacity (see definition in GN 00305.115A.2.).

2. b. 

   We will consider it lawful under applicable State law for the NH to have divorced the prior spouse, and the new duration-of-marriage exception will not be met, when:

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     applicable State law during the relevant time period allowed divorce based on fault; and

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     grounds for fault did include institutionalization due to mental incompetence or similar incapacity (see definition in GN 00305.115A.2.).

     NOTE: If State law during the relevant time period has “no-fault” divorce laws, the duration of marriage exception is not met.

There must be “satisfactory evidence” that the NH would have divorced the prior spouse if such a divorce were permitted under State law. “Satisfactory evidence” is generally defined as “evidence sufficient to produce a belief that the thing is true; credible evidence.” See GN 00305.115B.2.b. and GN 00305.115B.2.c.

Code the special relationship code of “216C2/G2” on the Beneficiary Marriage (BMAR) Common Screen to record the marriage relationship.

Develop as shown below if a claimant for surviving spouse’s benefits:

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  does not meet the 9-month duration-of-marriage requirement; an alternative requirement (RS 00207.001C.3.); or one of the exceptions in GN 00305.100A.2.a.through GN 00305.100A.2.c; and

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  alleges that the NH would have divorced a prior spouse but that they did not do so because the spouse was institutionalized due to mental incompetence or similar incapacity, and such a divorce would have been unlawful. See GN 00305.115A.2. for the definition of “mental incompetence or similar incapacity” for purposes of this provision.

1. a. 

   Based on proof of the claimant’s marriage to the NH, and proof of the prior spouse’s death, determine whether the NH and surviving spouse married within 60 days of the date of the prior spouse’s death. The marriage must have occurred by the end of the 60-day period starting with the day after the prior spouse’s death. If this requirement is not met, document the file and deny the claim. If the requirement is met, continue development as shown below.

2. b. 

   Get a statement from the surviving spouse claimant containing the following information:

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     The name and location of the institution;

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     The dates of, and basis for, the prior spouse’s institutionalization; and

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     The basis for the claimant’s allegation that the NH would have divorced the prior spouse if the divorce would have been lawful. The burden is on the claimant to prove that the NH would have divorced the prior spouse.

   If the claimant cannot provide the information above about the prior spouse’s institutionalization, see GN 00305.115B.2.d.

3. c. 

   The claimant’s allegation that the NH would have divorced the prior spouse must be confirmed, as follows:
   
   

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     Preferred evidence confirming the claimant’s allegation consists of proof that the NH inquired about or attempted to obtain a divorce; e.g., records of attempted divorce proceedings, a statement from an attorney, and/or copies of correspondence with an attorney.

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     If the claimant is unable to submit preferred evidence, statements from at least two of the NH’s relatives or friends, or other persons in a position to know the facts, will constitute secondary evidence.

   If you have a question as to whether the evidence that the NH would have divorced the prior spouse constitutes “satisfactory evidence,” contact the regional office (RO) for assistance.

4. d. 

   Ask the claimant to:

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     submit proof that they were free to marry for the entire 9-month period immediately prior to the NH’s death (e.g., proof of termination of a prior marriage); and

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     obtain a letter from the institution confirming the dates of, and basis for, the prior spouse’s institutionalization. Assist the claimant in obtaining this information if necessary.

     If the claimant cannot provide the name and location of the institution, or if a letter from the institution cannot be obtained for some other reason, document the file and obtain a statement confirming the dates of, and basis for, the prior spouse’s institutionalization from an objective knowledgeable source, such as a physician.

     If a statement from such a knowledgeable source cannot be obtained, document the file and obtain a statement from two other objective persons, such as the NH’s relatives. Use your best judgment as to the probative value of such statements; reliable confirmation of the facts surrounding the prior spouse’s institutionalization is necessary for a determination that the duration of marriage exception applies.

5. e. 

   If the requirements for the duration-of-marriage exception appear to be met, submit the case to the Office of General Counsel (OGC) for a legal opinion per GN 01010.815 (in the absence of a precedent opinion) as to whether it would have been unlawful under State law for the NH to divorce the prior spouse due to the prior spouse’s mental incompetence or similar incapacity. See GN 00305.115A.2. and GN 00305.115A.3.

6. f. 

   If the requirements for the duration-of-marriage exception are not met, document the file and deny the claim.