Category Archives: Social Security Dependents and Survivors Benefits

Can I get disabled widow’s benefits?

Question: My husband of thirty five years died at age 65. He was collecting Social Security. I’m 58, so I’m not eligible for retirement yet, but I can no longer work due to a bad hip and back problems. Someone told me I could get disabled widow’s benefits?

Answer: As long as you became disabled within seven years of your husband’s death and you fit Social Security’s definition of disabled, you should be able to get disabled widow’s benefits (DWB). Disabled widowers receive 71.5% of their spouses’ primary insurance amount, but you may receive less since it sounds like your husband was collecting early retirement benefits.

To get benefits before age 60, you have to apply for disabled widow’s benefits and prove to Social Security that you have a disability that prevents you from working any full-time job, for at least a year. You may want to read Nolo’s articles on disability for back problems and disability for hip problems to see if you would qualify as disabled.

Once you turn 60, your benefits would convert to “aged widow’s benefits,” which are like widow’s retirement benefits. These benefits are also sometimes referred to as surviving spouse benefits or spousal survivor benefits.

What’s the Status of Social Security Benefits for Couples in Same-Sex Marriages?

Question: I legally married my same-sex partner. My wife will soon be applying for Social Security spousal benefits on my record. We live in California, but are considering moving. If we move out-of-state, will she not be able to get these benefits?

If you live in a state that recognizes same-sex marriages and you were married to a same-sex partner in a state where same-sex marriages are valid, it is now settled that you can collect Social Security benefits based on your spouse’s earnings record (thanks to a 2013 Supreme Court ruling on DOMA). But Social Security has still not announced whether spousal or dependents benefits will ever be available to same-sex couples who are properly married but live in a state that doesn’t recognize same-sex marriage.  Social Security has told its employees to hold applications of those who fall into this category until the Department of Justice releases instructions.

Recently Social Security did clarify what it will do in situations where a same-sex couple was legally married in a foreign country. If the couple lives in a state where such marriages are legal and the state recognizes the foreign marriage as legal, Social Security benefits are available. But if the foreign-married couple is now living in a state that does not recognize same-sex marriages, Social Security will not pay benefits.

Since the last time I addressed Social Security’s rules on Social Security benefits for same-sex spouses, several more states have joined the ranks of “recognition states” – states that allow same-sex marriage or recognize same-sex marriages from other states. The states that currently recognize same-sex marriages as legal are California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and D.C.  So if you move to one of these states, your wife will be able to get Social Security dependents benefits. Plus, some experts think that Social Security law may soon change to allow all legally married same-sex couples to get benefits, regardless of where they currently reside. We’ll keep you updated.

For an update, see this June 26, 2014 post on Social Security benefits for same-sex couples.

New Social Security Figures Released for 2014

Yesterday Social Security announced that there would be a 1.5% increase in Social Security and SSI benefits for 2014. This is smaller than most retirees and disabled recipients would have liked, but remember that in 2010 and 2011, there was no increase.

Along with this increase in benefits, many important Social Security limits and Medicare fees will change on January 1, 2014.

The average Social Security retirement and disability benefit is expected to increase to $1,294, the average disability benefit to $1,148, and the average surviving spouse benefit to $1,243. The most Social Security benefits a retiree can collect in 2014 will be $2,642 per month.

If you continue to work while collecting early Social Security retirement benefits, your benefits will be reduced by $1 for every $2 you make over $1,290 per month. But if you will turn 66 during 2014, you can make up to $3,450 per month before your benefits are reduced (there is no limit once you turn 66).

The maximum amount of your income that is subject to the Social Security tax to fund Social Security retirement, survivors, and dependents benefits, as well as Social Security disability insurance, is $117,000 in 2014. There is no limit to the amount of income subject to the Medicare tax.

As to SSI, the new federal SSI benefit rate is $721 per month for an individual and $1,082 per month for a couple. The SSI payment amounts are higher in states that pay a supplementary SSI payment. Although some states have higher limits, in states with=out a supplementary payment, if you have income between $721 and $1,527, your SSI payment will be reduced, and over $1,527, your SSI will be terminated.

As far as determining your initial eligibility for disability purposes, in 2014 you must be making less than $1,070 per month to qualify for benefits, or $1,800 if you are blind. If you receive SSDI and are trying to go back to work, if you make more than $770 per month, it will count as one of your nine trial work months.

How Collecting Early Retirement Affects Spousal Dependents and Survivors Benefits

Question: I’m turning 62 this year and I’m considering claiming my retirement benefits early, since I was just denied disability benefits. If I do, will this lower my wife’s benefits too?

Answer: As you know, claiming Social Security before your full retirement age, which is currently 66, will lower your benefits permanently. Social Security reduces your benefits using the early retirement penalty so that you’ll receive the same amount between now and age 75 whether you claim at age 66 and get the standard amount, age 62 and get a smaller amount, or 70 and get an increased amount. That said, if you claim benefits early but you live past a certain age—called your “breakeven point”—you will wind up collecting less in total lifetime benefits than if you had waited to claim them at full retirement age.

Now, to answer your question: If you claim your Social Security retirement benefits early, this will not affect your wife’s dependents benefits, which are also called spousal retirement benefits. As long as your wife waits until her full retirement age to claim her spousal benefits, she can collect the full amount. Because dependents benefits are based on your primary insurance amount (which is based on your earnings record at your full retirement age), whether or not you claim benefits early doesn’t affect the amount of dependents benefits your spouse can collect.

Spousal retirement benefits are half of your primary insurance amount – that is, half of what you would have received if you had waited until full retirement age to claim benefits. However, if your wife claims the spousal retirement benefit before her full retirement age, her spousal benefits will be lowered permanently.

Survivors benefits are handled differently. If you claim retirement benefits early, this will lower your wife’s survivors benefits (also called the “widow’s benefit” or “deceased husband’s benefit), should you die before her. This is because at your death, your wife will be able to collect the same amount you were entitled to before you died. If your retirement benefit was lowered because of early retirement deductions, or increased because of delayed retirement (up until age 70), your wife’s survivors benefit will be similarly increased or decreased.

Also, if your wife were to collect the survivors’ benefit before she reached full retirement age (anytime from 60 to 65), her survivors’ benefit would be decreased. So if you collected retirement benefits early and then your wife collected her survivors benefits early, she would only get a small portion of your full retirement age benefit. (There is an exception here if your wife is caring for your dependent minor or disabled children: in this situation, she would not get an early retirement penalty regardless of the age she claimed this “mother’s benefit.”)

There are different strategies that couples can use to maximize their benefits, including “claiming and suspending” and collecting dependents benefits from each of your earnings records. To find out more, see Nolo’s article on how couples can maximize their Social Security benefits.

What Social Security Benefits Are Available for the “Currently Insured”?

Question: I read your last post on getting Medicare before you’re 65 and it talked about being currently insured. If my husband is currently insured (he worked for a while a couple of years ago), does that mean I can get Social Security benefits when he dies? He is in poor health and I don’t think he’s fully insured, because he can’t get Social Security retirement benefits.

Answer: There are very limited Social Security benefits for those who are currently insured or for the spouses of those who are currently insured. For most Social Security benefits, such as retirement benefits, you need to be “fully insured,” which generally means you have 40 work credits, or 10 years worth of work. For disability benefits, you need to be “insured for disability benefits,” which means you need at least one work credit for each year that has passed since you turned 21 (plus you need to have worked a certain amount in recent years).

To be currently insured, on the other hand, an individual needs to have earned only six credits in the three years before he or she became eligible for disability benefits or passed away. A credit is earned by making $1,160, and an individual can earn up to four credits per year. (A person can earn six credits in as little as 13 months if he or she makes a total of at least $6,960. )

However, the only time currently insured individuals can benefit from this insured status during their lifetime is if they have end-state renal disease (ESRD). In that case, they can get Medicare Part A, premium free, while being currently insured instead of fully insured.

While someone who is just currently insured is not eligible for Social Security retirement benefits or disability benefits, after the currently insured individual dies, his spouse and children may be eligible for survivors benefits. The following survivors benefits are available to the dependents of someone who was currently insured:

Child’s insurance benefits, for children who are unmarried and either:

  • under 18
  • between 18 and 19 and in school, or
  • disabled, with a disability that began before age 22.

Mother’s or father’s benefits, for surviving spouses who care for a child of the deceased spouse. The child being cared for must receive survivors benefits based on your spouse’s record and either be:

  • under 16, or
  • disabled.

A surviving child or a surviving spouse who has a surviving child in his or her care will receive 75% of what the deceased individual’s Social Security payment would have been, up to a family maximum. (If there is more than one child, each family member would get less than 75%.) Keep in mind that if the deceased individual wasn’t fully insured, the survivors benefit payment may be quite low. Also, as an aside, you should know that a currently insured individual’s spouse or children are not eligible for dependents benefits during the individual’s lifetime.

For more information, see our article on currently insured status for Social Security disability.

Why DOMA’s Reversal May Mean Less Social Security Money for Some Same-Sex Couples

With the Supreme Court’s overturning of part of the Defense of Marriage Act (DOMA), many same-sex couples who are already legally married in the states they live in are suddenly married in the eyes of Social Security. While this is good news for same-sex spouses who are eligible for Social Security disability insurance, the news may not so good for those who receive SSI, adult child benefits, or survivors benefits.

SSI

While being married per se doesn’t affect SSI eligibility, having a spouse can affect your eligibility if your spouse has income. If you live in a state that recognizes same-sex marriage, and your husband or wife has income, Social Security will attribute some of his or her income to you (this is called deeming spousal income). Because of SSI’s strict income limits, your new spouse’s income may make you ineligible for benefits, or reduce your benefits by the amount of your countable income.

If, on the other hand, your new spouse is also disabled, or over 65, Social Security will reassess your eligibility for SSI as a couple. The SSI asset limit for a couple is much lower than the amount two individuals are allowed to own, and in most states, the income limit for a couple is only one and a half times the income limit for an individual (instead of twice).  These stricter limits may make you ineligible for SSI now that you are legally married. In addition, the monthly SSI payment for a couple is only $1,066, so you may see your payment decrease (the SSI amount for one person is $710).

There’s one way that having your same-sex marriage finally recognized by Social Security could help you with SSI. If you’ve been living with your partner/spouse, and your spouse was paying your expenses, Social Security was probably not paying you the full SSI amount. If someone else pays for your food and shelter, the SSI counts this as “in-kind” income. Generally, Social Security keeps one-third of your SSI payment in this circumstance. But if you are now legally considered married in your state and it’s your legally recognized spouse who’s paying your expenses, the in-kind income rule doesn’t apply. You will be entitled to the full SSI amount, less any countable income you or your spouse have.

Who will be considered married by Social Security? If you and your new spouse live in a state in which you are considered legally married, Social Security will consider you legally married. But if you get married in a state that recognizes same-sex marriage as valid and you move to a state that doesn’t recognize same-sex marriage, Social Security may not consider you married. Some legal experts say that, for SSDI purposes, if you hold yourself out to the public as married, Social Security should consider you married even if you move to a state that doesn’t recognize same-sex marriage. This remains to be seen; we may see this issue resolved in the coming months.

For SSI purposes, if you can inherit from your spouse after your spouse passes away (without being named in your spouse’s will), this counts as being married.

 Adult Child Benefits

If you are receiving disability benefits under your parent’s work record, as an “adult child,” having your same-sex marriage recognized by Social Security due to the Supreme Court ruling will cause your SSDI benefits to stop. But if you marry a person with disabilities who is also receiving Social Security benefits, you may not lose your benefits when you get married.

Survivors Disability Benefits

If you are receiving survivors disability benefits, the Supreme Court ruling could negatively affect your benefits. You can receive survivors disability benefits if you are over 50 and disabled, your spouse died while eligible for Social Security retirement or disability benefits, and you are unmarried, or if you got married after the age of 50. So, if you married your same-sex partner after the age of 50, your benefits won’t be interrupted when Social Security recognizes your same-sex marriage. But if you were legally married before age 50, you could have a problem. Talk to a Social Security lawyer if you’re concerned.

Survivors Retirement Benefits

If you’re receiving retirement benefits as a surviving spouse, your benefits could be affected by the Supreme Court ruling. You can receive survivors retirement benefits if you are at least 60 years old, your spouse died while eligible for Social Security retirement or disability benefits, and you are unmarried, or if you got married after the age of 60. So, if you married your same-sex partner after the age of 60, your benefits won’t be interrupted when Social Security recognizes your same-sex marriage. But if you were legally married before age 60, you could have a problem. Talk to a Social Security lawyer if you are in this situation, or considering marrying your same-sex partner.

Social Security dependents and survivors benefits for same-sex spouses

Question: I live in California and want to marry my long-time partner in a same-sex marriage ceremony as soon as possible, now that the Supreme Court has ruled on Prop 8. Will this make me automatically eligible for Social Security benefits on my spouse’s record, now that DOMA has been overturned?

Answer: The recent Supreme Court ruling overturning part of the Defense of Marriage Act (DOMA) opens up Social Security spousal benefits to a large number of people who were ineligible before the ruling. Whether a spouse is eligible for Social Security benefits depends on whether the state in which the couple lives recognizes the couple’s marriage as valid. When DOMA was written into law in 1996, there were no states that had legalized same-sex marriage, so Social Security benefits before DOMA’s enactment and during DOMA’s reign were available only to hetero couples. With the Supreme Court overturning DOMA, same-sex spouses in states who were married in a state that allowed same-sex marriage and who lives in a state where same-sex marriage are recognized are suddenly eligible for Social Security benefits based on their spouses’ earnings records. (Note that if you were married before the state you live in recognized same-sex marriages, Social Security is not yet granting spousal benefits.)

The states in which same-sex spouses are now eligible for Social Security dependent and survivors benefits are California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, New York, Vermont and Washington and D.C. But to qualify for benefits based on a spouse’s, or deceased spouse’s, earnings record, Social Security requires that the marriage must have lasted a certain length of time. Let’s take a look at the various types of spousal benefits and the length of marriage required for eligibility.

To receive spousal retirement benefits as a spouse (a type of dependents benefit), you must have been legally married for at least a year and you must be at least 62. Note that even if you are eligible for retirement benefits on your own work record, you may be able to get a higher monthly Social Security check based on your spouse’s earnings record. Claiming early retirement benefits at age 62 may allow you to not have to claim your own retirement benefits until age 67 or 70.

For widow’s or widower’s benefits (a type of survivors benefit), you will be eligible for Social Security survivors benefits if you are at least 60 and you were legally married to your spouse for at least nine months before death. There are, however, exceptions to this rule. If you are the mother or father of your spouse’s biological child, or you legally adopted your spouse’s child while you were married and before the child turned 18, or your spouse’s death is the result of a violent accident, or your spouse’s death occurred while on active duty in the military, the nine month requirement does not apply.

For ex-spouse dependents or survivors benefits, you must have been married to your former husband or wife for at least 10 years.

For more information, see Nolo’s articles on Social Security dependents benefits and Social Security survivors benefits.

UpdateFor an update, see this June 26, 2014 post on Social Security benefits for same-sex couples.