410.393—“Member of the same household”; “living with”; “living in the same household”; and “living in the miner's household”.
(a) Defined.
(1)
The term member of the same household as used in section 402(a)(2) of the Act (with respect to a wife); the term living with as used in section 402(e) of the Act (with respect to a widow); and the term living in the same household as used in §§ 410.310(d) and 410.320(d) (with respect to certain wives and widows, respectively), mean that a husband and wife were customarily living together as husband and wife in the same place of abode.
(2)
The term living in the miner's household as used in section 412(a)(5) of the Act (with respect to a parent, brother, or sister (see § 410.380 )), means that the miner and such parent, brother, or sister, were sharing the same residence.
(b) Temporary absence.
The temporary absence from the same residence of either the miner, or his wife, parent, brother, or sister (as the case may be), does not preclude a finding that one was living with the other, or that they were members of the same household, etc. The absence of one such individual from the residence in which both had customarily lived shall, in the absence of evidence to the contrary, be considered temporary;
(2)
If the period of absence from his or her residence did not exceed 6 months, and neither individual was outside the United States, and the absence was due to business or employment reasons, or because of confinement in a penal institution or in a hospital, nursing home, or other curative institution; or
(3)
In any other case, if the evidence establishes that despite such absence they nevertheless reasonably expected to resume physically living together at some time in the reasonably near future.
(c) Death during absence.
Where the death of one of the parties occurred while away from the residence for treatment or care of an illness or an injury (e.g., in a hospital), the fact that the death was foreseen as possible or probable does not in and of itself preclude a finding that the parties were “living with” one another or were “member[s] of the same household” etc. at the time of death.
(d) Absences other than temporary.
In situations other than those described in paragraphs (b) and (c) of this section, the absence shall not be considered temporary, and the parties may not be found to be “living with” one another or to be “member[s] of the same household” etc. A finding of temporary absence would not be justified where one of the parties was committed to a penal institution for life or for a period exceeding the reasonable life expectancy of either, or was under a sentence of death; or where the parties had ceased to live in the same place of abode because of marital or family difficulties and had not resumed living together before death.
(e) Relevant period of time.
(1)
The determination as to whether a widow had been “living with” her husband shall be based upon the facts and circumstances as of the time of death of the miner.
(2)
The determination as to whether a wife is a “member of the same household” as her husband shall be based upon the facts and circumstances with respect to the period or periods of time as to which the issue of membership in the same household is material. (See § 410.510(c).)
(3)
The determination as to whether a parent, brother, or sister was “living in the miner's household” shall take account only of the 1-year period immediately prior to the miner's death. (See § 410.380.)