Owcp-2

§725.209

Determination of dependency; child.

(a) For purposes of augmenting the benefits of a miner or surviving
spouse, the term “beneficiary” as used in this section means only a
miner or surviving spouse entitled to benefits (see §725.202 and
§725.212). An individual who is the beneficiary's child (§725.208) will
be determined to be, or to have been, dependent on the beneficiary, if
the child:
(1) Is unmarried; and
(2)(i) Is under 18 years of age; or
(ii) Is under a disability as defined in section 223(d) of the Social
Security Act, 42 U.S.C. 423(d); or
(iii) Is 18 years of age or older and is a student.
(b)(1) The term “student” means a “full-time student” as defined in
section 202(d)(7) of the Social Security Act, 42 U.S.C. 402(d)(7) (see
§§404.367-404.369 of this title), or an individual under 23 years of age
who has not completed 4 years of education beyond the high school level
and who is regularly pursuing a full-time course of study or training at
an institution which is:
(i) A school, college, or university operated or directly supported by
the United States, or by a State or local government or political
subdivision thereof; or
(ii) A school, college, or university which has been accredited by a
State or by a State-recognized or nationally-recognized accrediting
agency or body; or
(iii) A school, college, or university not so accredited but whose
credits are accepted, on transfer, by at least three institutions which
are so accredited; or
(iv) A technical, trade, vocational, business, or professional school
accredited or licensed by the Federal or a State government or any
political subdivision thereof, providing courses of not less than 3
months' duration that prepare the student for a livelihood in a trade,
industry, vocation, or profession.
(2) A student will be considered to be “pursuing a full-time course of
study or training at an institution” if the student is enrolled in a
noncorrespondence course of at least 13 weeks duration and is carrying a
subject load which is considered full-time for day students under the
institution's standards and practices. A student beginning or ending a
full-time course of study or training in part of any month will be
considered to be pursuing such course for the entire month.
(3) A child is considered not to have ceased to be a student:

(i) During any interim between school years, if the interim does not
exceed 4 months and the child shows to the satisfaction of the Office
that he or she has a bona fide intention of continuing to pursue a fulltime course of study or training; or
(ii) During periods of reasonable duration in which, in the judgment of
the Office, the child is prevented by factors beyond the child's control
from pursuing his or her education.
(4) A student whose 23rd birthday occurs during a semester or the
enrollment period in which such student is pursuing a full-time course
of study or training shall continue to be considered a student until the
end of such period, unless eligibility is otherwise terminated.
§725.210

Duration of augmented benefits.

Augmented benefits payable on behalf of a spouse or divorced spouse, or
a child, shall begin with the first month in which the dependent
satisfies the conditions of relationship and dependency set forth in
this subpart. Augmentation of benefits on account of a dependent
continues through the month before the month in which the dependent
ceases to satisfy these conditions, except in the case of a child who
qualifies as a dependent because such child is a student. In the latter
case, benefits continue to be augmented through the month before the
first month during no part of which such child qualifies as a student.
§725.211
Time of determination of relationship and dependency of
spouse or child for purposes of augmentation of benefits.
With respect to the spouse or child of a miner entitled to benefits, and
with respect to the child of a surviving spouse entitled to benefits,
the determination as to whether an individual purporting to be a spouse
or child is related to or dependent upon such miner or surviving spouse
shall be based on the facts and circumstances present in each case, at
the appropriate time.
Conditions and Duration of Entitlement: Miner's Survivors
§725.212
Conditions of entitlement; surviving spouse or surviving
divorced spouse.
(a) An individual who is the surviving spouse or surviving divorced
spouse of a miner is eligible for benefits if such individual:
(1) Is not married;
(2) Was dependent on the miner at the pertinent time; and

(3) The deceased miner either:
(i) Is determined to have died due to pneumoconiosis; or
(ii) Filed a claim for benefits on or after January 1, 1982, which
results or resulted in a final award of benefits, and the surviving
spouse or surviving divorced spouse filed a claim for benefits after
January 1, 2005 which was pending on or after March 23, 2010.
(b) If more than one spouse meets the conditions of entitlement
prescribed in paragraph (a), then each spouse will be considered a
beneficiary for purposes of section 412(a)(2) of the Act without regard
to the existence of any other entitled spouse or spouses.
[65 FR 80054, Dec. 20, 2000, as amended at 78 FR 59117, Sept. 25, 2013]
§725.213
Duration of entitlement; surviving spouse or surviving
divorced spouse.
(a) An individual is entitled to benefits as a surviving spouse, or as a
surviving divorced spouse, for each month beginning with the first month
in which all of the conditions of entitlement prescribed in §725.212 are
satisfied.
(b) The last month for which such individual is entitled to such
benefits is the month before the month in which either of the following
events first occurs:
(1) The surviving spouse or surviving divorced spouse marries; or
(2) The surviving spouse or surviving divorced spouse dies.
(c) A surviving spouse or surviving divorced spouse whose entitlement to
benefits has been terminated pursuant to §725.213(b)(1) may thereafter
again become entitled to such benefits upon filing application for such
reentitlement, beginning with the first month after the marriage ends
and such individual meets the requirements of §725.212. The individual
shall not be required to reestablish the miner's entitlement to benefits
(§725.212(a)(3)(i)) or the miner's death due to pneumoconiosis
(§725.212(a)(3)(ii)).
§725.214

Determination of relationship; surviving spouse.

An individual shall be considered to be the surviving spouse of a miner
if:
(a) The courts of the State in which the miner was domiciled (see
§725.231) at the time of his or her death would find that the individual
and the miner were validly married; or

(b) The courts of the State in which the miner was domiciled (see
§725.231) at the time of the miner's death would find that the
individual was the miner's surviving spouse; or
(c) Under State law, such individual would have the right of the spouse
to share in the miner's intestate personal property; or
(d) Such individual went through a marriage ceremony with the miner,
resulting in a purported marriage between them which, but for a legal
impediment (see §725.230), would have been a valid marriage, unless such
individual entered into the purported marriage with knowledge that it
was not a valid marriage, or if such individual and the miner were not
living in the same household at the time of the miner's death.
§725.215

Determination of dependency; surviving spouse.

An individual who is the miner's surviving spouse (see §725.214) shall
be determined to have been dependent on the miner if, at the time of the
miner's death:
(a) The individual was living with the miner (see §725.232); or
(b) The individual was dependent upon the miner for support or the miner
has been ordered by a court to contribute to such individual's support
(see §725.233); or
(c) The individual was living apart from the miner because of the
miner's desertion or other reasonable cause; or
(d) The individual is the natural parent of the miner's son or daughter;
or
(e) The individual had legally adopted the miner's son or daughter while
the individual was married to the miner and while such son or daughter
was under the age of 18; or
(f) The individual was married to the miner at the time both of them
legally adopted a child under the age of 18; or
(g)(1) The individual was married to the miner for a period of not less
than 9 months immediately before the day on which the miner died, unless
the miner's death:
(i) Is accidental (as defined in paragraph (g)(2) of this section), or
(ii) Occurs in line of duty while the miner is a member of a uniformed
service serving on active duty (as defined in §404.1019 of this title),
and the surviving spouse was married to the miner for a period of not
less than 3 months immediately prior to the day on which such miner
died.

(2) For purposes of paragraph (g)(1)(i) of this section, the death of a
miner is accidental if such individual received bodily injuries solely
through violent, external, and accidental means, and as a direct result
of the bodily injuries and independently of all other causes, dies not
later than 3 months after the day on which such miner receives such
bodily injuries. The term “accident” means an event that was
unpremeditated and unforeseen from the standpoint of the deceased
individual. To determine whether the death of an individual did, in
fact, result from an accident the adjudication officer will consider all
the circumstances surrounding the casualty. An intentional and voluntary
suicide will not be considered to be death by accident; however, suicide
by an individual who is so incompetent as to be incapable of acting
intentionally and voluntarily will be considered to be a death by
accident. In no event will the death of an individual resulting from
violent and external causes be considered a suicide unless there is
direct proof that the fatal injury was self-inflicted.
(3) The provisions of paragraph (g) shall not apply if the adjudication
officer determines that at the time of the marriage involved, the miner
would not reasonably have been expected to live for 9 months.
§725.216

Determination of relationship; surviving divorced spouse.

An individual will be considered to be the surviving divorced spouse of
a deceased miner in a claim considered under this part or reviewed under
part 727 of this subchapter (see §725.4(d)), if such individual's
marriage to the miner had been terminated by a final divorce on or after
the 10th anniversary of the marriage unless, if such individual was
married to and divorced from the miner more than once, such individual
was married to such miner in each calendar year of the period beginning
10 years immediately before the date on which any divorce became final
and ending with the year in which the divorce became final.
§725.217

Determination of dependency; surviving divorced spouse.

An individual who is the miner's surviving divorced spouse (see
§725.216) shall be determined to have been dependent on the miner if,
for the month before the month in which the miner died:
(a) The individual was receiving at least one-half of his or her support
from the miner (see §725.233(g)); or
(b) The individual was receiving substantial contributions from the
miner pursuant to a written agreement (see §725.233(c) and (f)); or
(c) A court order required the miner to furnish substantial
contributions to the individual's support (see §725.233(c) and (e)).

§725.218

Conditions of entitlement; child.

(a) An individual is entitled to benefits where he or she meets the
required standards of relationship and dependency under this subpart
(see §725.220 and §725.221) and is the child of a deceased miner who:
(1) Is determined to have died due to pneumoconiosis; or
(2) Filed a claim for benefits on or after January 1, 1982, which
results or resulted in a final award of benefits, and the surviving
child filed a claim for benefits after January 1, 2005 which was pending
on or after March 23, 2010.
(b) A child is not entitled to benefits for any month for which a miner,
or the surviving spouse or surviving divorced spouse of a miner,
establishes entitlement to benefits.
[65 FR 80054, Dec. 20, 2000, as amended at 78 FR 59117, Sept. 25, 2013]