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.

If I move to a state that doesn’t recognize same-sex marriage, will I lose my benefits?

Question: I heard Social Security finally changed the rules regarding benefits for same-sex couples. If I was married in a recognition state in the Northeast and then I retire to Florida, a non-recognition state, will my Social Security spousal benefits be cut off?

Answer: It depends. If you were already receiving benefits before you moved, you should be okay. The Justice Department has clarified this week what happens if a married couple moves to a state that doesn’t recognize gay marriage. From now on, when a claimant applies for spousal benefits, the Social Security Administration will evaluate his or her eligibility based on the state in which she lives during the application process, and will not later reassess eligibility if the person moves. Here’s some background on how Social Security decides eligibility.

Whether a spouse is eligible for Social Security benefits on her spouse’s earnings record depends on whether the state in which the couple lives recognizes the couple’s marriage as valid. Despite a 2013 Supreme Court ruling that overturned part of the Defense of Marriage Act (DOMA), a federal Social Security statute still says spouses are considered married when the state in which they live considers them married.

The states that now recognize same-sex spouses as legally married and eligible for Social Security dependent and survivors benefits are California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and D.C.

So, for example, if you and your spouse are legally married in New York and you apply for Social Security benefits while living there, and then you move to Florida, a state that doesn’t recognize same-sex marriage, you will continue to receive benefits because you lived in New York when you applied for benefits. This is a bit quirky, because it also means that, if you marry in New York, live there for a while, then move to Florida, and then apply for Social Security benefits, you will be ineligible, because at the time of application you lived in a non-recognition state. Confusing, but that’s the way current law stands.

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

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.

How the DOMA Ruling Affects Children of Same-Sex Marriages

Question: I married my wife in a same-sex marriage ceremony in New York last year. We now live in California. My wife is on disability. Is my child now eligible for federal disability benefits?

Answer: The children of same-sex couples who marry may now be eligible for federal disability and retirement benefits, including Social Security dependents and survivors benefits, veterans dependents and survivors benefits, and military benefits. Eligibility depends on the type of benefit and either the state the marriage took place in, the state the family lives in, or the state the couple lived in when they got married – all three federal benefit programs have different rules. The good news is that a child with same-sex parents can get federal benefits even if the new parent hasn’t gone through a stepparent/second-parent adoption.

Social Security

Let’s look at Social Security first. The children of disabled, retired, or deceased individuals who were insured through Social Security are eligible for dependents and survivors benefits. This is true whether the child is a biological child, adopted child, or stepchild of the insured individual. For instance, if a woman gives birth to a child and then marries her lesbian partner (the “stepparent”), if the stepparent is collecting Social Security retirement or disability benefits, the child is eligible for a dependents benefit based on the stepparent’s Social Security record.

Dependents benefits. The amount of the dependents benefit for a child is 50% of the parent or stepparent’s monthly benefit, but if other individuals are receiving a monthly benefit, such as other children or a spouse, the amount will be less. To be eligible for dependents benefits, the child must have been a stepchild for at least one year before the child can apply for benefits (in other words, the parents must have been legally married for at least a year and live in a state that recognizes same-sex marriage before the child can apply for benefits). Read more about the requirements for dependents benefits.

Survivors benefits. The amount of the benefit for a surviving child is 75% of what the deceased parent or stepparent’s monthly benefit, but will be lower if other children or the surviving spouse shares in the benefit. To be eligible for survivors benefits, the child must have been a stepchild (with parents who were legally married) of the deceased parent for at least nine months before the stepparent’s death. There are some exceptions to this rule, however: if the death of the stepparent was accidental or the result of active military duty, or if the parents legally adopted the stepchild, the marriage can have lasted fewer than nine months. Read more about the requirements for survivors benefits.

Legal issues. A stepchild in a same-sex marriage is eligible for benefits only if he or she lives in a state that recognizes same-sex marriage as legal and only if the stepparent financially supports the stepchild. The insured stepparent does not need to officially adopt the child. However, Social Security considers a child to be a stepchild eligible for benefits only if the child’s natural or adoptive parent married an insured individual after the child was born. A child’s whose natural parent married a stepparent before the child was born is not considered a stepchild, except in the case where the child was conceived before the marriage occurred. So in the situation where a lesbian or gay couple marries and then one spouse has or adopts a child, the other spouse (the stepparent) will probably have to officially adopt the child for the child to be eligible for Social Security benefits based on the stepparent’s earnings record.

Veterans Benefits

The rules are a bit simpler for VA benefits. If a biological or adoptive parent of child marries a same-sex partner who is eligible for veterans benefits, the “stepchild” is eligible for benefits as long as he or she lives with the veteran (or lived with the veteran before the veteran’s death). A child is eligible for veterans dependents and survivors benefits based on a same-sex marriage if the state the veteran lived in at the time of marriage recognized same-sex marriage as legal or if the state the veteran lived in when he or she became eligible for veterans benefits recognizes same-sex marriage. This means family members are ineligible for benefits when the veteran and his or her spouse traveled to a state that recognized same-sex marriage for the purpose of getting married.

Unlike Social Security, children aren’t eligible for a monthly cash dependent benefit if their parents are disabled; instead, their parent will receive a higher disability compensation rate depending on the amount of children he or she has. Plus, children and stepchildren of veterans are eligible for dependents benefits that include educational benefits and health care through CHAMPVA. Children and stepchildren of deceased veterans are also eligible for survivors benefits, including disability indemnity compensation and death pension. See Nolo’s article on veterans benefits for same-sex spouses for more information.

Military Benefits

While children and stepchildren of active duty military members are not eligible for separate cash payments, some forms of the service member’s compensation will increase when a dependent is added to the family. But children and stepchildren of service members are eligible for TRICARE health benefits and other benefits.

For the purpose of military benefits, stepchildren count as dependents without needing to be adopted. The stepchild’s parents do need to be legally married, which, to the Department of Defense, means that the marriage took place in a state that allows same-sex marriage. See Nolo’s article on military benefits for same-sex spouses for more information.

Learn More

For more information on developments following the Windsor decision on the Defense of Marriage Act, see Nolo’s series of articles under The Supreme Court’s DOMA Decision.

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.

When can widows get Social Security disability benefits?

Question: My husband died two years ago. He was 63. He was collecting Social Security benefits when he died, but the payments stopped right after I reported his death. Social Security told me I can’t get survivor benefits until I’m 60. I’m 55 now.

After my husband died, I tried to find a job, but had no luck. No one would hire me because I have no experience — I never really worked, except for a couple of years after I dropped out of high school. Now, because of diabetes, high blood pressure, and obesity, I can’t work even if I could find a job. I can’t even walk up a flight of stairs without getting out of breath and having aches and pains. Can I get disability benefits?

Answer: It’s true that as a widow, you can normally collect survivor benefits based on your spouse’s earning record with Social Security once you turn 60. However, if you’re disabled, you can collect survivor benefits earlier.

If you are at least 50 years old and disabled, and your disability started within seven years of your spouse’s death, you can receive Social Security benefits based on your husband’s earnings record. Assuming you don’t have children collecting benefits on your husband’s record, you can receive 71.5% of your husband’s SSDI benefit amount.

That said, Social Security must find you have a disability that prevents you from doing substantial amount of work. You generally have to either meet the requirements of one of Social Security’s listed disabilities (your medical conditions probably don’t qualify) or prove that there are no jobs that you can do, even simple sit-down jobs that require no walking or lifting.

Luckily, Social Security has a special vocational profile for people in your situation that may make it easier for you to qualify for disability. Social Security must automatically find you disabled if you:

  • are age 55 or older
  • have no “past relevant work” (no substantial gainful activity within the last 15 years)
  • have no formal schooling past the 11th grade, and
  • have a severe impairment.

It is much easier to prove that you have a severe impairment than to prove that you meet the requirements of a listed disability or that there are no jobs you can do. The SSA defines a “severe” impairment as one that significantly limits your ability to perform one activity needed to do most jobs, such as:

  • walking, sitting, standing, pushing, pulling, lifting, or carrying items
  • hearing, speaking, or seeing
  • understanding and following simple directions, or
  • interacting with co-workers and supervisors, or adjusting to changes in the workplace.

It seems that, with your medical condition, Social Security should find that your condition is severe since your ability to do physical activities sounds significantly limited. In fact, for Social Security to deny you by saying your impairments weren’t severe, the agency would have to find that you have only slight abnormalities that have no more than a minimal effect on your ability to work.