A little known provision of the Social Security system allows parents to receive Social Security benefits if their child dies or becomes disabled. These are called Parent’s Benefits, which can easily be confused with Mother’s and Father’s Benefits (which are paid when one parent dies leaving the other to care for a child under 16 years of age).

Social Security Parent’s Benefits are not available every time a child dies or becomes disabled. The critical elements are that the parent is at least 62 years old and dependent on the disabled or deceased child.

20 CFR §404.370 is the applicable regulation which outlines the requirement of Parent Benefit eligibility.

You 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.

Can a divorced husband or wife collects Social Security survivor’s benefits (widow’s or widow’s benefits) after a divorce?

Yes, in some circumstances, they can.

Here is a summary of the requirements:

1. You had to be married for at least 10 years before the divorce became final.
2. You are at least 60 years old; or you are at least 50 years old and have a disability.
   1. If you are at least 50 and have a disability, the disability had to start 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.
3. You are not entitled to an old-age benefit that is equal to or larger than the insured person’s primary insurance amount
4. You are unmarried, unless for benefits for months after 1983 you meet one of the following conditions:
   1. You remarried after you became 60 years old; or
   2. You are now age 60 or older and you remarried after age 50 but before attaining age 60 AND at the time of the remarriage, you were entitled to widow’s or widower’s benefits as a disabled widow or widower; or
   3. You are now at least age 50 but not yet age 60 and you remarried after attaining age 50 AND you are disabled AND your disability began within the specified time of subsection c in the regulation listed below.

Want an even simpler version? Here is a short and sweet version (with the exceptions cut out):

Surviving divorced spouse may be eligible for benefits on the deceased ex-spouses earnings if they were married for 10 years, are at least 60 years old (or at least 50 years old and have a disability), are not entitled to a equal or greater old-age benefits, and are unmarried. 

Keep in mind that if you do not meet this standard, there are exceptions (summarized above, and in full below).

Now here is the full text of the regulation with all of the requirements:

§404.336 How do I become entitled to widow’s or widower’s benefits as a surviving divorced spouse? I have reformatted it for easier reading.

We will find you entitled to widow’s or widower’s benefits as the surviving divorced wife or the surviving divorced husband 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 surviving divorced wife or surviving divorced husband and you meet both of the conditions in paragraphs (a)(1) and (2) of this section:

(1) You were validly married to the insured under State law as described in §404.345 or are deemed to have been validly married as described in §404.346.

(2) You were married to the insured for at least 10 years immediately before your divorce became final.

(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 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 attain 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 have not attained 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 the requirements in both 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. This 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 previous 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 does not have to 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).

 photo credit: the Italian voice

I previously wrote about when a child qualifies for survivor’s benefits. I was recently asked if adoption stops Social Security survivor’s benefits for a child.

If a child receives benefits from a deceased parent and is adopted by a step parent, can he still receive benefits from the deceased parent?

I had to confer with colleagues familiar with this topic.

Adoption after entitlement to benefits is not a terminating event.

However, adoption prior to entitlement to benefits might prevent entitlement. There are cases which have gone either way. It depends on the laws in the State where the worker died and other circumstances.

It is always a good idea to check with your local Social Security office to address the specific circumstances of your case. Thanks to the wonderful folks at Social Security Advice Online for their assistance in providing this answer.

Unfortunately, typically not. While a 504 plan or an IEP is good evidence and often contains useful information about the child’s disability, it is often not enough by itself.

There is no single formula for winning a disability case. There is a wide range of possible evidence that may be useful:

• Doctors records.
• Hospital records.
• Mental health provider records.
• Police reports.
• School disciplinary reports.
• Attendance records.
• School psychologist records.
• Any evaluations with
• Physical therapy / occupational therapy records.
• Teacher questionnaires.
• Special Education teacher reports.
• IQ test results.
• WJ-III test results.

This is just scratching the surface. If you can think of other evidence, do not avoid it just because it is not listed here. Tell me in the comments about the kind of evidence you found useful.

I was recently asked how adding another child will affect the amounts paid to the disabled parent’s children living in a separate household.

My ex is disabled. If he has more kids. How will that affect the Social Security benefits my kids receive?

The disabled individual’s child is eligible to receive auxiliary benefits from Social Security. If the combined total of the all benefit (the disabled individual’s benefits and all auxiliary benefits) exceeds the family maximum, then all auxiliary benefits are equally reduced to bring the combined total within the maximum.

In short, if the disabled parent has a new child, all the other beneficiaries may see their benefits reduced.

Here is how Social Security explains it:

I’ve heard that there is a maximum family benefit under Social Security. Does this mean that once the maximum is reached, some family members won’t get benefits?

No. Each family member entitled to a monthly benefit will receive one. The total benefits received by the family, however, cannot exceed the family maximum amount. That amount is divided among all entitled dependents. The more dependents who receive benefits on the worker’s Social Security record, the lower the benefit amount will be for each dependent. However, the family maximum does not affect the wage earner’s benefit.

Ok. How much can a spouse or child get in auxiliary Social Security benefits?

All eligible dependents can receive up to 50% of the wage earner’s (typically the disabled individual’s) benefits. However, the combined total of all auxiliary benefits cannot be above the family maximum.

So if the disabled individual receives $1,000 per month. Each child may be eligible for $500 per month in auxiliary benefits — so long as the combined total of all auxiliary benefits is under the family maximum.

If the family maximum limit is reached, all auxiliary benefits are equally reduced to bring the total auxiliary benefits within the family maximum limit.

This question comes up in the comments from time to time.

My children receive Social Security auxiliary benefits because my spouse is disabled. My oldest is graduating high school next month. Social Security has told me that my oldest’s benefits will be stopped.

Will my other children’s benefits go up?

Fortunately, the answer is often, “YES!”

Here is Social Security take on this issue from their FAQ page:

QUESTION: I have four children who receive benefits on my account. When one of my children graduates from high school, is the total amount that they receive reduced or is that amount now divided by three instead of four?

ANSWER: As one child (auxiliary) turns age 18 and is no longer in a secondary school (high school), benefits to the other children will usually increase up to the family maximum. However, the remaining children on the record are each only entitled to no more than 50 percent of the number holder’s benefit, and that percentage will not increase.

Social Security pays benefits to spouses and children of disabled parents. The requirements for spouses and children are discussed the linked article.

However, as many parents discover, there is a cap on auxiliary benefits. Taken directly from Social Security:

Benefits are payable to spouses and children of disabled workers, but such benefits are limited. The family maximum for a family of a disabled worker is 85 percent of the worker’s Average Indexed Monthly Earnings (AIME). However, it cannot be less than the worker’s PIA nor more than 150 percent of the PIA.

Note: rather than trying to figure out the AIME or the PIA, it is much easier to contact your local your local Social Security office and simply ask for these two figures. A bit of quick math will provide you the family maximum.

1. If the 85% of the AIME is less than the PIA, the family maximum will be the PIA.
2. If 85% of the AIME is greater than the PIA, the family maximum is capped at 150% of the PIA.

We have two adopted children that we have had since birth. One is now 14, but was born at 26 weeks weighing 1lb 14 ou. The other is now 12 but was born at 32 weeks at 3lbs 5oz.

Are they eligible for Social Security benefits now?

It is important to remember that Social Security benefits for disabled children fall under the Supplemental Security Income (SSI) program. Just as in adult SSI cases, children can only receive benefits as of their protected filing date (PFD); there are no benefits before the PFD.

That means Social Security will focus its attention on whether the child is disabled at present. There is actually a bit of wiggle room here as there can be an issue of disability starting before the PFD. However, the period of disability has to continue through the protected filing date. If you cannot show the child is disabled as of the date of filing a claim for Social Security child SSI benefits, while the child may have been disabled in the past, there are no benefits available to the child and there is no case.

Put another way, a child might have been eligible for disability benefits as an infant, or at some other time in the past, if someone filed an application. However, if no one did, you cannot file an application now based on a disability in the past.

The only exception, and it is a limited one, is when there was a prior claim filed in the past and it is still within the time period reopen the prior claim – two years from the date of the initial denial on the prior claim. If there was a prior claim, and it is within 2 years of the initial denial on that prior claim, it may be possible to try to reopen that case with a new application.

I understand that this is a harsh rule, and I find myself commiserating with parents who tell me about their children’s early hospitalizations and medical problems. However, the discussion always turns to the issue of whether there is a current claim and whether the child is disabled as of the protected filing date.

Whether a child qualifies for disability benefits depends on meeting the initial non-medical requirements and the severity of their conditions and how well the child’s medical conditions are documented. Working with a lawyer can help you get an idea of your child’s chances on a disability case. However, it is still only a guess. The only way to find out is to apply.

photo credit: limaoscarjuliet

Several people have asked if the auxiliary Social Security benefits (benefits paid the the spouse and children) of a disabled person receiving Social Security Disability Insurance reduce child support or spousal maintenance payments.

Colorado Springs family law lawyer Yolanda Fennick tackles this topic in today’s guest article:

Child support is paid on behalf of minor children who are entitled to support by their mother and father, despite disability. When courts calculate child support, judges initially look at the gross income of mom and the gross income of dad. When one or both parents are disabled, the judge will want to know the amount and source of the Social Security benefit the parent is receiving to begin the analysis in either a child support or maintenance case. The amount of Social Security received may or may not be used to calculate child support.

C.R.S. Section 14-10-115 (a) (I) says that “gross income” includes income from any source, except as otherwise provided in subparagraph (II)” of the statute. Gross income does NOT include child support received by a parent, benefits from a means-tested public assistance program, e.g. SSI, food stamps and general assistance; income from additional jobs beyond full time/40 per week employment and social security benefits received by a child, or on behalf of a child because of the death or disability of a stepparent.

Said another way, if a parent receives SSI and food stamps, this parent would not have to worry about their benefits being used in the calculation pay child support as this is contrary to the law; however, they would be exposed to paying the child support minimum payment which is currently $50 per month.

When a parent is disabled and receives Social Security Disability benefits (SSDI), this amount will be used to calculate child support. If the custodial parent receives Social Security payments on behalf of the child, the noncustodial parent’s share of the total child support obligation may be reduced by the custodial parents receipt of the child benefit if the needs of the child are reduced by receiving the social security benefit. See IRM of Quintana, 30 P.3d 870 (Colo.App. 2001). If the noncustodial parent receives the Social Security, IRM of Wright, 924 P.2d 1207 (Colo.App.1996) tells us that when the noncustodial obligor (the person who owes child support) qualifies for Social Security benefits, a motion to modify child support must be filed with the Court before any offsets to child support can occur. The noncustodial parents receipt of disability payments will offset his/her child support obligation dollar for dollar. C.R.S. Section 14-10-115(11)(c).

In other words, if the noncustodial parent owes $400 in child support and the child receives $200 in disability payments, the noncustodial parent’s obligation would be reduced by the $200 received by the child and would owe $200 in child support.

Determining maintenance in divorce cases is another area where confusion can exist. Again, the judge will look to the amount and source of income each spouse has.

When a husband or wife receives SSI, there would likely be no payment of maintenance by the recipient of that benefit. If the SSI recipient is the lesser income earner, the issue that arises is whether receiving maintenance from the paying spouse outweighs the benefits of receiving SSI, which also includes the receipt of Medicaid. When a husband or wife receives SSDI ( Social Security Disability Insurance), the amount received will be used in the maintenance analysis as income because receipt of those funds is an ‘economic circumstance’. In maintenance cases, the judge has a list of factors found in Colorado law to consider in the analysis of this often complex issue. C.R.S. 14-10-114.

As each case is different, Social Security payments in the instances of child support and maintenance are fraught with exceptions. Talk to an attorney who has expertise the area of family law and who can fully advise you based upon your specific circumstances.

Biography: Yolanda M. Fennick is a solo practitioner and has been practicing exclusively family law in Colorado for 15 years. She is currently the President of the El Paso County Bar Association’s Family Law Section. Yolanda Fennick can be reached at (719) 219-6250.

Disabled children can apply for Social Security benefits under the Title 16 children’s Supplemental Security Income (child SSI) program. Children’s cases are considered differently than adult disability claims. However, after a child turns 18, Social Security applies the adult standard to decide disability. Note: children between 18 and 22 may be eligible for Disabled Adult Child benefits based on their parents’ contribution to Social Security.

What happens if a child turns 18 before Social Security decides if the child is disabled?

Here is what Social Security says on this (20 CFR 406.924):

If you attain age 18 after you file your disability application but before we make a determination or decision. For the period during which you are under age 18, we will use the rules in this section. For the period starting with the day you attain age 18, we will use the disability rules we use for adults who file new claims, in §416.920.

Put another way, Social Security will consider disability under the child standard for the portion of time the individual was under 18, and use the adult standard for the portion of time the individual was 18 or over. That means you, in effect, have to prove the case twice: once under the child standard and again under the adult standard.

This can get tricky as an individual can be disabled under the one standard but not the other.

Also, when a child was under 18 for only a short part of the total claim, there is an issue of whether it is worth doubling the analysis for the amount of amount of benefits potentially due.

Keep in mind that SSI back benefits can only be paid back to the protected filing date. Also, unless the claim was protectedly filed on the first day of the month, the benefits are rounded up to the next full month.

If a claim was filed on anything other than the first day of the month the child turns 18, there are no additional benefits available. However, the case will still be considered under both the child and adult standards of disability.

If the case was filed on the first day of the month in which the child turns 18, there is only one additional month of benefits. However, the case will be evaluated under both the adult and child standards. The same applies if the child was only under 18 for only a short period of time.

As a result, it is sometimes worthwhile to move the onset date to the date of the child’s 18th birthday. Of course I cannot give you a hard and fast rule describing when to amend the onset date. However, you should be aware of the costs and benefits so you can make an informed decision. In my Colorado disability practice, there have been times where the onset date was amended to age 18, and other times not.

Disabled children under age 18 can receive Social Security disability benefits under the Supplemental Security Income (SSI) program, or “Child’s SSI.” In order to qualify for children’s disability benefits, Social Security requires that the child:

1. Is not working at a job that Social Security considers to be substantial work; and
2. Has a physical or mental condition (or a combination of conditions) that results in “marked and severe functional limitations.”  This means that the condition(s) very seriously limits his or her activities; and
3. The condition(s) has lasted, or is expected to last, at least 1 year or is expected to result in death.

Note: some conditions result in presumptive disability decision. If your child has one of these condition, he or she may be able to be instantly approved.

However, the majority of children’s disability cases focuses on the second part, the requirement of that a condition produces “marked and severe functional limitation.” There are several ways of doing this:

1. Just as in adult cases, a child may meet one of the Listing of Impairments. A listing of medical conditions, acceptable medical evidence, and the severity necessary for an impairment to be considered disabling. The children’s listings are available here.
2. An impairment may also “medically equal” a listing level impairment. Medically equaling an impairment means that the child’s impairment is not provided in the listings, however, the conditions produces the same or very similar symptoms and limitation as a listed impairment. Note: while you can certainly consider medically equaling a listing, as a practical tip, it is often better to consider meeting or “functionally equaling” a listing.
3. An impairment may also “functionally equal” a listing level impairment. This is another way of saying that the child’s condition is as bad as a listing level impairment. However, there are very specific rules for functional equivalence which are best discussed in their own article.

INCOME AND ASSET LIMITS APPLY:

Additionally, just like the adult SSI program, income and asset limits apply. One wrinkle in children’s SSI case is that Social Security looks at household income and assets (instead of just those of the child). Social Security has pages discussing how it decides whether parents’ and child’s income and resources are within allowed limits.

The household financial limits sometimes make children financially ineligible for children’s SSI benefits even though they might meet the medical requirements for disability.

If denied on financial grounds, parents sometimes wait to re-apply for Social Security benefits for their children until the child is 18. At 18, only the child’s income and resources are counted. However, the child is then evaluated under the adult standard for Social Security disability.

Another option parents are often not aware of when re-applying at age 18, is also apply for Social Security Disabled Adult Child (DAC) benefits.

• DAC provides benefits under the parent’s contribution to Social Security (which may allow for higher monthly benefits).
• As a Title II benefit program, DAC does not count non-compensation sources of income. Gifts, support, inheritance, settlements would not affect DAC eligibility.
• DAC benefits provide Medicare health insurance instead of Medicaid coverage provided with SSI.

Disabled Adult Child benefits have additional requirements. For example: one parent needs to have worked long enough paying into Social Security to qualify.

CC photo credit: kroszk@

Even though you cannot receive Social Security benefits during incarceration, can you get disability if you are out of jail or prison and residing in a half-way house?

Under the Social Security regulations, the answer is “no.”

“I was transferred from prison to a halfway house that is under the control of my state’s Department of Corrections. Can I have my benefits started again since I am no longer in prison?”

No. Social Security will not pay benefits while you reside in any facility under the authority of your state’s Department of Corrections.  Even though you are no longer in prison, you are still under the control and custody of your state’s Department of Corrections until you complete your court-ordered sentence and you are officially released, or until the Department of Corrections places you on parole.

Click here for more information.

Social Security announced today that there will be no increase in Social Security Supplemental Security Income (SSI) disability benefits for 2011. The Federal Benefit Rate (FBR) – the maximum monthly rate for SSI benefits – will stay at $674 for individuals per month, and $1,011 per month for couples.

Historically, SSI benefits have increased annually. The last increase was in 2009 increasing maximum SSI benefits from $639 to $674. This makes 2011 the third year in a row that SSI benefits are staying at the same rate. More information about changes to Social Security in 2011 including substantial gainful activity (SGA) and trial work period (TWP) amounts can be found here.

CC photo credit: banspy

Will your Social Security benefits (Social Security disability insurance – SSDI, or Supplemental Security Income – SSI) stop if you have to wear an ankle bracelet or other type of home monitor?

The answer is no. Social Security does not consider in home detention as “incarceration” which would normally stop payment of Social Security benefits to the disabled individual.

So, having a home ankle monitor will not stop your Social Security benefits.

As a general rule, you are not entitled to Social Security disability benefits if you are incarcerated in jail or prison. However, Social Security benefits do not end immediately with incarceration:

If you are on SSI (Title 16 – Supplemental Security Income benefits), your Social Security disability benefits do not stop until you are incarcerated for 30 days:

If you get a monthly SSI check and you are in jail, your SSI check will stop after you are in jail for a full calendar month.

For example, if you were in jail on 3/21/01 and you will stay there to serve a three-month sentence, SSA will stop your SSI check beginning with April 2001.

If you are receiving SSDI (Title 2 – Social Security Disability Insurance benefits) Social Security will stop benefits after you are incarcerated for 30 days after your conviction:

If you get Title II benefits and you are in jail and were convicted of a crime, your monthly benefits will stop after you remain in jail more than 30 continuous days following your conviction. Your checks will stop with the month you entered jail and were convicted.

For example, if you were sent to jail on 3/21/01, convicted of a crime on 3/29/01, and the court ordered you to serve a 6-months sentence, your benefits would stop beginning with your March 2001 Title II check, the check you receive in April 2001.

Click for more information from Social Security on when benefits stop after incarceration.

Did you notice the difference there. It looks like SSI benefits are stopped 30 days after incarceration starts. However, SSDI benefits stop 30 days after conviction - which could be quite some time after incarceration if you are arrested and cannot make bond. Note: I am not 100% sure that this interpretation is correct. If you have information on this, tell me in the comments.

Also, you can lose 3 months of benefits if you sentenced to just over 30 days:

The law states that you cannot get payments for any month, any part of which you spend in jail, following your conviction and confinement of more than 30 continuous days.

For example, if the court convicts you on March 29th for 30 days you would go to jail that same day and remain in jail until May 2nd, you would not get benefits for March, April, or May.

In other words, a sentence of just over 30 days beginning at the end of one month and ending at the very beginning of the third month would mean you lose benefits for all three months! Check out this Social Security Answer for more information.

CC photo credit: h.koppdelaney

Social Security may be able to restart your benefits after you are released from incarceration (jail or prison). Click here for more information on whether you may be able to resume benefits vs having to start a new claim for benefits.

If you are eligible to resume your benefits, here are Social Security’s recommendations to get your Social Security disability or SSI benefits as quickly as possible:

If possible, you or the prison should contact Social Security before you are released. As soon as you know your scheduled release date, ask if the prison has a pre-release agreement with Social Security. If so, the prison may be able to contact Social Security for you.

If they do not have a prerelease agreement, contact Social Security at 1-800-772-1213 Monday through Friday, 7 a.m. to 7 p.m. and give them your Social Security number and your expected release date. A Social Security representative can provide further instructions and make an appointment for you at the local Social Security office if necessary.

After you are released, you will need to furnish Social Security with proof of your release and the date of release. Depending on the circumstances, Social Security may be able to have your checks started effective with the month after the month of your release.

Click here, for more information, or contact your local Social Security office.

CC photo credit: Davichi

After you are released from jail or prison, will Social Security let you restart your benefits or will you have to start a new application?

The answer depends on the kind of benefits you received (Social Security Disability Insurance – SSDI, or Supplemental Security Income – SSI) and how long you were incarcerated in jail or prison.

Restarting SSI after incarceration:

It is possible to restart SSI benefits if you were incarcerated for less than 12 months.

After you are incarcerated for a year or longer though, you have to start a new claim for benefits:

For SSI beneficiaries, benefits are terminated when the individual is incarcerated for a year or more.

Restarting SSDI after incarceration:

Social Security Disability Insurance (SSDI) benefits are suspended during incarceration.

For Social Security beneficiaries, benefits remain suspended until the inmate is released.

As far as I can tell, there is no time limit on restarting a SSDI claim after incarceration.

For more information directly from Social Security, click here. If I missed something, let me know in the comments. Thanks!

A reader asked if a child can still receive Social Security auxiliary benefits if she is living apart from the disabled parent:

If I have legal guardianship of my nephew and my sister is receiving SSDI. Can I apply to receive the benefits for his caretaking? My sister has been told that she could receive benefits for him, but unless she gets to keep it, she won’t apply for it, saying that the SS office told her it was only if he lived with her. Is that true or could I apply for him?

This is similar to a situation I wrote about concerning divorced parents. Children with disabled parents are still eligible for Social Security auxiliary benefits even if they are living apart from the disabled parent. Please note: the disabled parent has to be receiving Title 2: Disability Insurance Benefits (DIB). If the parent is receiving only Title 16: Supplemental Security Income (SSI), then there are no auxiliary benefits available.

The applicable regulation is 29 CFR 404.350 which describes when children are entitled to auxiliary benefits:

(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.

Basically, a child is entitled to auxiliary benefits if a parent is disabled or has died, if they are the parent’s natural child, adopted child, step child, or grand child, unmarried, under 18 (or a Disabled Adult Child) and dependent on the disabled parent.

There is no requirement that the child live with the disabled parent.

Children can often receive Social Security benefits if a parent is disabled or deceased. I have previously written about these kind of Social Security auxiliary and survivors benefits. However, there are times when proving paternity becomes an issue. Here are a couple of situations where this comes up:

• Parents separate and, the non-custodial father becomes disabled (potential auxiliary benefits based on a disabled parent).
• Common law marriages with a disabled husband or wife splitting with the father denying paternity (potential auxiliary benefits based on a disabled parent).
• Father dies (potential survivors benefits based on a deceased parent) but Social Security denies the claim because there is not enough evidence proving paternity.

Note: most of the examples deal with paternity. However, the same laws apply if there is a question  of who the mother is.

Also, I am focusing on resolving paternity without a court ordered DNA test or exhumation.

Social Security has regulations describing when a child is a “natural child” of the parent (full text below). Note: for adopted children, check out this article.

According to Social Security’s regulations, a child may be eligible to receive benefits from the insured if:

1. The child could inherit under intestacy laws of the state where the disputed parent had permanent residence. Intestacy laws are the state laws describing how property is distributed if an individual dies without a will. These laws often differ from state to state.
2. Mother and father went through a good faith marriage ceremony but there was some problem keeping the marriage from being legal.
3. The father acknowledged the child in writing as his child. For example: a will, a soldier’s application for an allotment, an insurance application, even in a letter. See Social Security Handbook Section 1709. See also POMS GN 00306.105.
4. A court has ordered that the individual is the parent. See POMS GN 00306.110.
5. A court has ordered that the individual has to pay support as the parent.
6. “Other evidence” supporting paternity. This can be any other evidence which shows who the child’s parent is. However, if you are relying on “other evidence” to prove paternity, you must also show that the disputed parent was either living with the child or contributing to the child’s support at the time the child applied for benefits. If the disputed parent has died,  the child must show the disputed parent was either living with the child or contributing to the child’s support when he or she died.

Keep in mind that these requirements all start off with, “you are the insured’s natural child.” If someone can disprove paternity, a plain reading of the regulations suggests that the child might not be eligible for any benefits (even if you could meet the other requirements).

The easiest way to prove paternity is if you have written acknowledgment of the child from the disputed parent or a court order. If you do not have either, things get much tougher. However, you may have “other evidence” of the disputed parent’s paternity. According to the Social Security Handbook Section 1712 (See also POMS GN 00306.125), this includes:

• Hospital, religious, or school records;
• A court order or decree that [does not meet all of the following requirements in §404.355(a)(3) but otherwise supports paternity].
• A statement from the attending physician, relative, or other person who knows the child’s relationship to you, including the basis for that knowledge; and
• Evidence that you and the child’s mother were living together at the time of the child’s conception.

These are just examples. “Other evidence” can be anything that shows paternity, including videos, birthday cards, even school registration or permission forms. Use your imagination here.

Ultimately though, you may have to contact a family law and/or probate attorney in the state of the disputed parents permanent residence (either at the time the application was filed – if the disputed parent is living, or at the time of the disputed parents death – if deceased) to determine the state intestacy laws.

For an idea of what you may be facing, take a look at Social Security’s list of state intestacy laws here (scroll half way down the page to the section titled “State Intestacy Laws”). Colorado’s intestacy laws are listed at POMS GN 00306.435. However, state laws are subject to change and the POMS may not have the most current version.

Here is the Social Security regulation re-formated for easier reading:

§404.355 Who is the insured’s natural child?

(a) Eligibility as a natural child. You may be eligible for benefits as the insured’s natural child if any of the following conditions is met:

(1) You could inherit the insured’s personal property as his or her natural child under State inheritance laws, as described in paragraph (b) of this section.

(2) You are the insured’s natural child and the insured and your mother or father went through a ceremony which would have resulted in a valid marriage between them except for a “legal impediment” as described in §404.346(a).

[Per §404.346(a)] A legal impediment includes only an impediment which results because a previous marriage had not ended at the time of the ceremony or because there was a defect in the procedure followed in connection with the intended marriage. For example, a defect in the procedure may be found where a marriage was performed through a religious ceremony in a country that requires a civil ceremony for a valid marriage. Good faith means that at the time of the ceremony you did not know that a legal impediment existed, or if you did know, you thought that it would not prevent a valid marriage.

(3) You are the insured’s natural child and your mother or father has not married the insured, but the insured has either acknowledged in writing that you are his or her child, been decreed by a court to be your father or mother, or been ordered by a court to contribute to your support because you are his or her child. If the insured is deceased, the acknowledgment, court decree, or court order must have been made or issued before his or her death. To determine whether the conditions of entitlement are met throughout the first month as stated in §404.352(a), the written acknowledgment, court decree, or court order will be considered to have occurred on the first day of the month in which it actually occurred.

(4) Your mother or father has not married the insured but you have evidence other than the evidence described in paragraph (a)(3) of this section to show that the insured is your natural father or mother. Additionally, you must have evidence to show that the insured was either living with you or contributing to your support at the time you applied for benefits. If the insured is not alive at the time of your application, you must have evidence to show that the insured was either living with you or contributing to your support when he or she died. See §404.366 for an explanation of the terms “living with” and “contributions for support.”

(b) Use of State Laws—

(1) General. To decide whether you have inheritance rights as the natural child of the insured, we use the law on inheritance rights that the State courts would use to decide whether you could inherit a child’s share of the insured’s personal property if the insured were to die without leaving a will. If the insured is living, we look to the laws of the State where the insured has his or her permanent home when you apply for benefits. If the insured is deceased, we look to the laws of the State where the insured had his or her permanent home when he or she died. If the insured’s permanent home is not or was not in one of the 50 States, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, or the Northern Mariana Islands, we will look to the laws of the District of Columbia. For a definition of permanent home, see §404.303. For a further discussion of the State laws we use to determine whether you qualify as the insured’s natural child, see paragraphs (b)(3) and (b)(4) of this section. If these laws would permit you to inherit the insured’s personal property as his or her child, we will consider you the child of the insured.

(2) Standards. We will not apply any State inheritance law requirement that an action to establish paternity must be taken within a specified period of time measured from the worker’s death or the child’s birth, or that an action to establish paternity must have been started or completed before the worker’s death. If applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.

(3) Insured is living. If the insured is living, we apply the law of the State where the insured has his or her permanent home when you file your application for benefits. We apply the version of State law in effect when we make our final decision on your application for benefits. If you do not qualify as a child of the insured under that version of State law, we look at all versions of State law that were in effect from the first month for which you could be entitled to benefits up until the time of our final decision and apply the version of State law that is most beneficial to you.

(4) Insured is deceased. If the insured is deceased, we apply the law of the State where the insured had his or her permanent home when he or she died. We apply the version of State law in effect when we make our final decision on your application for benefits. If you do not qualify as a child of the insured under that version of State law, we will apply the version of State law that was in effect at the time the insured died, or any version of State law in effect from the first month for which you could be entitled to benefits up until our final decision on your application. We will apply whichever version is most beneficial to you. We use the following rules to determine the law in effect as of the date of death:

(i) If a State inheritance law enacted after the insured’s death indicates that the law would be retroactive to the time of death, we will apply that law; or

(ii) If the inheritance law in effect at the time of the insured’s death was later declared unconstitutional, we will apply the State law which superseded the unconstitutional law.