Social Security Survivors’ and Dependents’ Benefits



Academy of Special Needs Planners, Webinar, May 25, 2010

Social Security Survivors’ and Dependents’ Benefits

David J. Lillesand, Esq.

Robinson, Lillesand, Wolasky and Finchum, P.L.

Clearwater and Miami, Florida



A Word about Terminology – you, your, parent, mother and father

Throughout we are going to use the word “you” or “your” when describing benefits and how the survivors’ and dependents’ benefits system works. We’re presenting this to you as though you were presenting the description to the client.

We’re going to be talking about “parent” and “mother” and “father.” As used in SSA parlance, “parent” means your parent when they

Introduction to Survivors’ and Dependents’ Benefits

Many people think of Social Security as just a retirement program. Some people know that there are SSDI (Social Security Disability Insurance) benefits. Although it is true that most of the people receiving Social Security receive retirement benefits, many others get Social Security because they are:

• A spouse of someone who gets Social Security retirement or disability benefits; or

• A child of someone who gets Social Security; or

• A spouse of a worker who died; or

• A child of a worker who died; or

• A dependent parent of a worker who died.

Depending on your circumstances, you may be eligible for Social Security at any age. In fact, Social Security pays more benefits to children than any other government program.

How you become eligible for Social Security

As you work and pay taxes, you earn Social Security “credits.” In 2010, you earn one credit for each $1,120 in earnings—up to a maximum of four credits per year. (The amount of money needed to earn one credit goes up every year.)

Most people need 40 credits (10 years of work) to qualify for benefits. Younger people need fewer credits to be eligible for disability benefits or for family members to be eligible for survivors benefits when the worker dies.

Retirement benefits for widows and widowers

If you are receiving widow’s or widower’s benefits, you can switch to your own retirement benefits as early as age 62, assuming your retirement benefit is more than the amount you receive on your deceased spouse’s earnings. In many cases, you can begin receiving one benefit at a reduced rate and then switch to the other benefit at the full rate when you reach full retirement age.

Your benefits may be taxable

Some people who get Social Security will have to pay taxes on their benefits. Less than one-third of our current beneficiaries pay taxes on their benefits.

You will have to pay taxes on your benefits if you file a federal tax return as an “individual” and your total income is more than $25,000. If you file a joint return, you will have to pay taxes if you and your spouse have a total income that is more than $32,000.

Benefits for your family - Summary

Dependents benefits – you’re alive!

When you start receiving Social Security retirement or disability benefits, other family members also may be eligible for payments. For example, benefits can be paid to your husband or wife:

• If he or she is age 62 or older; or

• At any age if he or she is caring for your child (the child must be younger than 16 or disabled and entitled to Social Security benefits on your record).

Benefits also can be paid to your unmarried children if they are:

• Younger than 18;

• Between 18 and 19 years old, but in elementary or secondary school as full-time students; or

• Age 18 or older and severely disabled (the disability must have started before age 22).

If you become the parent of a child (including an adopted child) after you begin receiving benefits, let SSA know about the child, so SSA can decide if the child is eligible for benefits.

How much can family members get?

Each family member may be eligible for a monthly benefit that is up to half of your retirement or disability benefit amount. However, there is a limit, called the “Family Maximum,” to the total amount of money that can be paid to you and your family. The limit varies, but is generally equal to about 150 to 180 percent of your retirement or disability benefit.

If you are divorced

If you are divorced, your ex-spouse may qualify for benefits on your earnings. In some situations, he or she may get benefits even if you are not receiving them. To qualify, a divorced spouse must:

• Have been married to you for at least 10 years;

• Have been divorced at least two years;

• Be at least 62 years old;

• Be unmarried; and

• Not be eligible for an equal or higher benefit based on his or her own work or someone else’s work.

Survivors benefits – unfortunately, you’re dead.

When you die, your family may be eligible for benefits based on your work.

Family members who can collect benefits include a widow or widower who is:

• 60 or older; or

• 50 or older and disabled; or

• Any age if he or she is caring for your child who is younger than 16 or disabled and entitled to Social Security benefits on your record.

Your children can receive benefits, too, if they are unmarried and:

• Younger than 18 years old; or

• Between 18 and 19 years old, but in an elementary or secondary school as full-time students; or

• Age 18 or older and severely disabled (the disability must have started before age 22).

Additionally, your parents can receive benefits on your earnings if they were dependent on you for at least half of their support.

If you are divorced

If you are divorced, your ex-spouse may be eligible for survivors benefits based on your earnings when you die. He or she must:

• Be at least age 60 years old (or 50 if disabled) and have been married to you for at least 10 years; or

• Be any age if he or she is caring for a child who is eligible for benefits based on your earnings; and

• Not be eligible for an equal or higher benefit based on his or her own work; and

• Not be currently married, unless the remarriage occurred after age 60 or after age 50 if disabled.

Benefits paid to an ex-spouse will not affect the “Family Max” – the benefit rates for other survivors receiving benefits on your earnings record.

NOTE: If you are deceased and your ex-spouse remarries after age 60, he or she may be eligible for Social Security benefits based both on your work and the new spouse’s work, whichever is higher.

How much will your survivors get?

Your survivors receive a percentage of your basic Social Security benefit—usually in a range from 75 to 100 percent each. However, there is a limit to the amount of money that can be paid each month to a family. The limit varies, but is generally equal to about 150 to 180 percent of your benefit rate.

Average 2010 monthly Social Security benefits

• Retired worker: $1,164

• Retired couple: $1,892

• Disabled worker: $1,064

• Disabled worker with a spouse and child: $1,803

• Widow or widower: $1,123

• Young widow or widower with two children: $2,391

Additional Payment after death

If you have enough credits, a one-time payment of $255 also will be made after your death. This benefit may be paid to your spouse or minor children if they meet certain requirements.

The Details of Eligibility

Who can get survivors benefits based on your work?

The possibilities are: your widow or widower, your unmarried children, or your dependent parents, if they meet all the conditions for benefits.

1) Your widow or widower may be able to receive full benefits at full retirement age. The full retirement age for survivors is age 66 for people born in 1945-1956 and will gradually increase to age 67 for people born in 1962 or later. Reduced widow or widower benefits can be received as early as age 60. If your surviving spouse is disabled, benefits can begin as early as age 50.

The more specific terms for receiving Widow(er)s benefits are described in the federal regulations as follows:

20 CFR §404.435. We will find you entitled to benefits as the widow or widower of a person who died fully insured if you meet the requirements in paragraphs (a) through (e) of this section:

(a) You are the insured's widow or widower based upon a relationship described in §§404.345 through 404.346, and you meet one of the conditions in paragraphs (a)(1) through (4) of this section:

(1) Your relationship to the insured as a wife or husband lasted for at least 9 months immediately before the insured died.

(2) Your relationship to the insured as a wife or husband did not last 9 months before the insured died, but you meet one of the conditions in paragraphs (a)(2)(i) through (iv) of this section.

(i) At the time of your marriage the insured was reasonably expected to live for 9 months, and the death of the insured was accidental. The death is accidental if it was caused by an event that the insured did not expect, if it was the result of bodily injuries received from violent and external causes, and if, as a direct result of these injuries, death occurred not later than 3 months after the day on which the bodily injuries were received. An intentional and voluntary suicide will not be considered an accidental death.

(ii) At the time of your marriage the insured was reasonably expected to live for 9 months, and the death of the insured occurred in the line of duty while he or she was serving on active duty as a member of the uniformed services as defined in §404.1019.

(iii) At the time of your marriage the insured was reasonably expected to live for 9 months, and you had been previously married to the insured for at least 9 months.

(iv) The insured had been married prior to his or her marriage to you and the prior spouse was institutionalized during the marriage to the insured due to mental incompetence or similar incapacity. During the period of the prior spouse's institutionalization, the insured, as determined based on evidence satisfactory to the Agency, would have divorced the prior spouse and married you, but the insured did not do so because the divorce would have been unlawful, by reason of the institutionalization, under the laws of the State in which the insured was domiciled at the time. Additionally, the prior spouse must have remained institutionalized up to the time of his or her death and the insured must have married you within 60 days after the prior spouse's death.

(3) You and the insured were the natural parents of a child; or you were married to the insured when either of you adopted the other's child or when both of you adopted a child who was then under 18 years old.

(4) In the month before you married the insured, you were entitled to or, if you had applied and had been old enough, could have been entitled to any of these benefits or payments: widow's, widower's, father's (based on the record of a fully insured individual), mother's (based on the record of a fully insured individual), wife's, husband's, parent's, or disabled child's benefits; or annuity payments under the Railroad Retirement Act for widows, widowers, parents, or children age 18 or older.

(b) You apply, except that you need not apply again if you meet one of the conditions in paragraphs (b)(1) through (4) of this section:

(1) You are entitled to wife's or husband's benefits for the month before the month in which the insured dies and you have attained full retirement age (as defined in §404.409) or you are not entitled to either old-age or disability benefits.

(2) You are entitled to mother's or father's benefits for the month before the month in which you attained full retirement age (as defined in §404.409).

(3) You are entitled to wife's or husband's benefits and to either old-age or disability benefits in the month before the month of the insured's death, you are under full retirement age (as defined in §404.409) in the month of death, and you have filed a Certificate of Election in which you elect to receive reduced widow's or widower's benefits.

(4) You applied in 1990 for widow's or widower's benefits based on disability and you meet both of the conditions in paragraphs (b)(4)(i) and (ii) of this section:

(i) You were entitled to disability insurance benefits for December 1990, or eligible for supplemental security income or federally administered State supplementary payments, as specified in subparts B and T of part 416 of this chapter, respectively, for January 1991.

(ii) You were found not disabled for any month based on the definition of disability in §§404.1577 and 404.1578, as in effect prior to January 1991, but would have been entitled if the standard in §404.1505(a) had applied. (This exception to the requirement for filing an application is effective only with respect to benefits payable for months after December 1990.)

(c) You are at least 60 years old; or you are at least 50 years old and have a disability as defined in §404.1505 and you meet all of the conditions in paragraphs (c)(1) through (4) of this section:

(1) Your disability started not later than 7 years after the insured died or 7 years after you were last entitled to mother's or father's benefits or to widow's or widower's benefits based upon a disability, whichever occurred last.

(2) Your disability continued during a waiting period of 5 full consecutive months, unless months beginning with the first month of eligibility for supplemental security income or federally administered State supplementary payments are counted, as explained in the Exception in paragraph (c)(3) of this section. The waiting period may begin no earlier than the 17th month before you applied; the fifth month before the insured died; or if you were previously entitled to mother's, father's, widow's, or widower's benefits, the 5th month before your entitlement to benefits ended. If you were previously entitled to widow's or widower's benefits based upon a disability, no waiting period is required.

(3) Exception: For monthly benefits payable for months after December 1990, if you were or have been eligible for supplemental security income or federally administered State supplementary payments, as specified in subparts B and T of part 416 of this chapter, respectively, your disability need not have continued through a separate, full 5-month waiting period before you may begin receiving benefits. We will include as months of the 5-month waiting period the months in a period beginning with the first month you received supplemental security income or a federally administered State supplementary payment and continuing through all succeeding months, regardless of whether the months in the period coincide with the months in which your waiting period would have occurred, or whether you continued to be eligible for supplemental security income or a federally administered State supplementary payment after the period began, or whether you met the nondisability requirements for entitlement to widow's or widower's benefits. However, we will not pay you benefits under this provision for any month prior to January 1991.

(4) You have not previously received 36 months of payments based on disability when drug addiction or alcoholism was a contributing factor material to the determination of disability (as described in §404.1535), regardless of the number of entitlement periods you may have had, or your current application for widow's or widower's benefits is not based on a disability where drug addiction or alcoholism is a contributing factor material to the determination of disability.

(d) You are not entitled to an old-age benefit that is equal to or larger than the insured person's primary insurance amount.

(e) You are unmarried, unless for benefits for months after 1983 you meet one of the conditions in paragraphs (e)(1) through (3) of this section:

(1) You remarried after you became 60 years old.

(2) You are now age 60 or older and you meet both of the conditions in paragraphs (e)(2)(i) and (ii) of this section:

(i) You remarried after attaining age 50 but before attaining age 60.

(ii) At the time of the remarriage, you were entitled to widow's or widower's benefits as a disabled widow or widower.

(3) You are now at least age 50, but not yet age 60 and you meet both of the conditions in paragraphs (e)(3)(i) and (ii) of this section:

(i) You remarried after attaining age 50.

(ii) You met the disability requirements in paragraph (c) of this section at the time of your remarriage (i.e., your disability began within the specified time and before your remarriage).

2) Your widow or widower can receive benefits at any age if she or he takes care of your child who is receiving Social Security benefits and younger than age 16 or disabled.

This is really called mother’s and father’s benefits, and described in the federal regulations. Again, this is not your mother or your father, but are the mothers and fathers of your children. This is described in the federal regulations as follows:

20 CFR §404.339. You may be entitled as the widow or widower to mother’s or father’s benefits on the earnings record of someone who was fully or currently insured when he or she died. You are entitled to these benefits if—

e) You are the widow or widower of the insured and meet the conditions described in §404.335(a);

(b) You apply for these benefits; or you were entitled to wife’s benefits for the month before the insured died;

© You are unmarried;

(d) You are not entitled to widow’s or widower’s benefits, or to an old-age benefit that is equal to or larger than the full mother’s or father’s benefit; and

(e) You have in your care the insured’s child who is entitled to child’s benefits and he or she is under 16 years old or is disabled. Sections 404.348 and 404.349 describe when a child is in your care.

3) Your unmarried children who are younger than age 18 (or up to age 19 if they are attending elementary or secondary school full time) also can receive benefits. Your children can get benefits at any age if they were disabled before age 22 and remain disabled. Under certain circumstances, benefits also can be paid to your stepchildren, grandchildren, step-grandchildren or adopted children.

This encompasses two types of children: disabled and not disabled. Under age 18 or 19, every child who meets the above categories, whether disabled or not disabled, is eligible for a check based on the father’s or mother’s death, retirement or disability. After age 18 or 19, only disabled children are eligible in some cases to meet the Disabled Adult Child (DAC) benefit rules and continue to receive benefits based your work record.

The regulations that correspond to this program are the following:

20 CFR §404.350.

(a) General. You are entitled to child's benefits on the earnings record of an insured person who is entitled to old-age or disability benefits or who has died if—

(1) You are the insured person's child, based upon a relationship described in §§404.355 through 404.359;

(2) You are dependent on the insured, as defined in §§404.360 through 404.365;

(3) You apply;

(4) You are unmarried; and

(5) You are under age 18; you are 18 years old or older and have a disability that began before you became 22 years old; or you are 18 years or older and qualify for benefits as a full-time student as described in §404.367.

(b) Entitlement preclusion for certain disabled children. If you are a disabled child as referred to in paragraph (a)(5) of this section, and your disability was based on a finding that drug addiction or alcoholism was a contributing factor material to the determination of disability (as described in §404.1535) and your benefits ended after your receipt of 36 months of benefits, you will not be entitled to benefits based on disability for any month following such 36 months regardless of the number of entitlement periods you have had if, in such following months, drug addiction or alcoholism is a contributing factor material to the later determination of disability (as described in §404.1535).

In 20 CFR §404.354, SSA explains that “child” includes a lot of concepts, as follows:

20 CFR §404.354. You may be related to the insured person in one of several ways and be entitled to benefits as his or her child, i.e., as a natural child, legally adopted child, stepchild, grandchild, step-grandchild, or equitably adopted child. For details on how we determine your relationship to the insured person, see §§404.355 through 404.359.

4) Your dependent parents can receive benefits if they are age 62 or older. (For your parents to qualify as dependents, you would have had to provide at least one-half of their support.)

The rules for parents’ benefits are described in 20 CFR 404.370 to .374. Eligibility is based on the following:

20 CFR 404.370. You [the parent] may be entitled to parent's benefits on the earnings record of someone who has died and was fully insured. You are entitled to these benefits if all the following conditions are met:

(a) You are related to the insured person as his or her parent in one of the ways described in §404.374.

(b) You are at least 62 years old.

(c) You have not married since the insured person died.

(d) You apply.

(e) You are not entitled to an old-age benefit equal to or larger than the parent's benefit amount.

(f) You were receiving at least one-half of your support from the insured at the time he or she died, or at the beginning of any period of disability he or she had that continued up to death. See §404.366(b) for a definition of one-half support. If you were receiving one-half of your support from the insured at the time of the insured's death, you must give us proof of this support within 2 years of the insured's death. If you were receiving one-half of your support from the insured at the time his or her period of disability began, you must give us proof of this support within 2 years of the month in which the insured filed his or her application for the period of disability. You must file the evidence of support even though you may not be eligible for parent's benefits until a later time. There are two exceptions to the 2-year filing requirement:

(1) If there is a good cause for failure to provide proof of support within the 2-year period, we will consider the proof you give us as though it were provided within the 2-year period. Good cause does not exist if you were informed of the need to provide the proof within the 2-year period and you neglected to do so or did not intend to do so. Good cause will be found to exist if you did not provide the proof within the time limit due to—

(i) Circumstances beyond your control, such as extended illness, mental or physical incapacity, or a language barrier;

(ii) Incorrect or incomplete information we furnished you;

(iii) Your efforts to get proof of the support without realizing that you could submit the proof after you gave us some other evidence of that support; or

(iv) Unusual or unavoidable circumstances that show you could not reasonably be expected to know of the 2-year time limit.

(2) The Soldiers' and Sailors' Civil Relief Act of 1940 provides for extending the filing time.

Final Comments

This is but a brief overview of survivors and dependents benefits under the Social Security Act. When in doubt, or even if not, have your client apply. If denied, then look at the reason why and review the detailed regulations, and if necessary, the caselaw.

For example, just on the issue of whether someone is, in fact, dead, there are over 300 pages of federal court decisions. Who is a child is complicated by children conceived by dead men – through in vitro fertilization after death. The concept of family, and relationships as easy as parent and child, is further complicated by science and by legal concepts of “equitable adoption.” Federal laws such as the Defense of Marriage Act (DOMA) conflict with state laws defining who is the “mother” and “father” of a child in care. Although DOMA will prevent same-sex couples from receiving Title 2 widow(er)’s benefits, on the other hand, DOMA prevents the application of SSI spousal deeming rules for SSI eligibility for disabled same-sex partners, while at the same time specifically prohibiting the government from punishing children of same-sex marriages.

The Social Security Act and the administration tries to keep up by issuing new Rulings, federal regulations, Emergency Memorandums published on the SSA Policy Website, and new POMS.

U.S. Code of Federal Regulations

Title 20 – Employee’s Benefits

Chapter III - Social Security

Part 404 Federal old-age, survivors and disability insurance (OASDI)

Subpart D, contains 20 CFR §§404.301 to 404.392, which is the following:

Subpart D—Old-Age, Disability, Dependents' and Survivors' Insurance Benefits; Period of Disability

General

404.301 Introduction.

404.302 Other regulations related to this subpart.

404.303 Definitions.

404.304 What are the general rules on benefit amounts?

404.305 When you may not be entitled to benefits.

Old-Age and Disability Benefits

404.310 When am I entitled to old-age benefits?

404.311 When does my entitlement to old-age benefits begin and end?

404.312 How is my old-age benefit amount calculated?

404.313 What are delayed retirement credits and how do they increase my old-age benefit amount?

404.315 Who is entitled to disability benefits?

404.316 When entitlement to disability benefits begins and ends.

404.317 How is the amount of my disability benefit calculated?

404.320 Who is entitled to a period of disability.

404.321 When a period of disability begins and ends.

404.322 When you may apply for a period of disability after a delay due to a physical or mental condition.

404.325 The termination month.

Rules Relating to Continuation of Benefits

After Your Impairment Is No Longer Disabling

404.327 When you are participating in an appropriate program of vocational rehabilitation services, employment services, or other support services.

404.328 When your completion of the program, or your continuation in the program for a specified period of time, will increase the likelihood that you will not have to return to the disability benefit rolls.

Benefits for Spouses and Divorced Spouses

404.330 Who is entitled to wife's or husband's benefits.

404.331 Who is entitled to wife's or husband's benefits as a divorced spouse.

404.332 When wife's and husband's benefits begin and end.

404.333 Wife's and husband's benefit amounts.

404.335 How do I become entitled to widow's or widower's benefits?

404.336 How do I become entitled to widow's or widower's benefits as a surviving divorced spouse?

404.337 When does my entitlement to widow's and widower's benefits start and end?

404.338 Widow's and widower's benefits amounts.

404.339 How do I become entitled to mother's or father's benefits as a surviving spouse?

404.340 How do I become entitled to mother's or father's benefits as a surviving divorced spouse?

404.341 When mother's and father's benefits begin and end.

404.342 Mother's and father's benefit amounts.

404.344 Your relationship by marriage to the insured.

404.345 Your relationship as wife, husband, widow, or widower under State law.

404.346 Your relationship as wife, husband, widow, or widower based upon a deemed valid marriage.

404.347 "Living in the same household" defined.

404.348 When is a child living with me in my care?

404.349 When is a child living apart from me in my care?

Child's Benefits

404.350 Who is entitled to child's benefits?

404.351 Who may be re-entitled to child's benefits?

404.352 When does my entitlement to child's benefits begin and end?

404.353 Child's benefit amounts.

404.354 Your relationship to the insured.

404.355 Who is the insured's natural child?

404.356 Who is the insured's legally adopted child?

404.357 Who is the insured's stepchild?

404.358 Who is the insured's grandchild or step-grandchild?

404.359 Who is the insured's equitably adopted child?

404.360 When a child is dependent upon the insured person.

404.361 When a natural child is dependent.

404.362 When a legally adopted child is dependent.

404.363 When a stepchild is dependent.

404.364 When is a grandchild or step-grandchild dependent?

404.365 When an equitably adopted child is dependent.

404.366 "Contributions for support," "one-half support," and "living with" the insured defined—determining first month of entitlement.

404.367 When you are a "full-time elementary or secondary school student".

404.368 When you are considered a full-time student during a period of nonattendance.

Parent's Benefits

404.370 Who is entitled to parent's benefits?

404.371 When parent's benefits begin and end.

404.373 Parent's benefit amounts.

404.374 Parent's relationship to the insured.

Special Payments at Age 72

404.380 General.

404.381 Who is entitled to special age 72 payments?

404.382 When special age 72 payments begin and end.

404.383 Special age 72 payment amounts.

404.384 Reductions, suspensions, and non-payments of special age 72 payments.

Lump-Sum Death Payment

404.390 General.

404.391 Who is entitled to the lump-sum death payment as a widow or widower who was living in the same household?

404.392 Who is entitled to the lump-sum death payment when there is no widow(er) who was living in the same household?

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