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.

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.

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.

Here is the answer in a directly from Social Security:

No. At one time, SSA did pay benefits to eligible college students, but the law changed in 1981. Benefits stop when a child reaches age 18 unless he or she:

• Is disabled; or
• Attends a secondary (grade 12 or below) or elementary school full-time.

In general, benefits end when:

• The student graduates [high school]; or
• The student turns age 19 and two months, whichever is first.

Normally, benefits stop when a child reaches age 18 unless he or she is disabled. However, if the child is still a full-time student at a secondary (or elementary) school at age 18, benefits generally can continue until he or she graduates or until two months after he or she reaches age 19, whichever is first.

Here are the applicable regulations:

20 CFR 404.350 “Who is entitled to child’s benefits” states

(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.

Subsection 5 concerns continuing benefits for those 18 or over, who are still full-time students. This section requires an individual to be either:

1. Under 18; or
2. A Disabled Adult Child (DAC); or
3. 18 or older and a full-time student under §404.367.

However, §404.367 only deals with primary and secondary school students. Part “e” specifically requires that “You are in grade 12 or below.

Keep in mind we are talking about auxiliary benefits for children due to the death or disability of a parent. How going to school affects a disabled child’s entitlement to disability benefits is discussed here.

Updated 04/07/11.

What happens in cases of grandparents, step-parents, or parents who adopt children? Are their children entitled to Social Security child’s benefits?

Social Security has a number of regulations used to decide if a child in these circumstances qualify for auxiliary benefits.

• 20 CFR 404.335 deals with a natural child.
• 20 CFR 404.336 deals with a legally adopted child.
• 20 CFR 404.337 deals with step children.
• 20 CFR 404.338 deals with grandchildren or step-grandchildren.
• 20 CFR 404.339 deals with equitable adopted children.

Even if none of these regulations apply (for example: in cases of a guardianship), you may still want to talk to someone at Social Security to see if the children might qualify under this or another Social Security program.

When a disabled individual receives Social Security disability insurance benefits (also known as DIB, SSDI or Title 2 benefits), their spouse and/or minor children may also be eligible to receive Social Security benefits. These benefits paid to the spouse or minor child are called “auxiliary benefits.”

Wait a minute, I’m on SSI, but my kids didn’t get any Social Security benefits.

Whether a spouse or children receive Social Security benefits depends on which Social Security benefits the spouse or parent is receiving. There are two kinds of Social Security disability benefits: Social Security disability insurance (SSDI) and Supplemental Security Income (SSI).

Note: Even though only “Social Security Disability Insurance” uses the word “disability,” both programs provide Social Security benefits for disabled individuals. However, only Social Security Disability Insurance (SSDI) has auxiliary benefits.

This means you have to be receiving SSDI for your spouse or children to receive auxiliary benefits. If you are on SSI, you are the only person who can receive benefits because there are no auxiliary benefits for SSI.

When can children and spouses receive auxiliary benefits?

As noted above, the disabled individual has be receiving SSDI benefits (not SSI).

1. Spouses have to be either:

a) 62 or older, or

b) have a child in their care who is either

i) under the age of 16, or

ii) disabled.

2. Children have to either:

a) minor child (under age 18), or

b) adult disabled before the age of 22, or

c) high school student under age 19.

You can check out the applicable regulation here: 20 CFR 404.330

Updated 05/01/11.

If an individual is disabled and receives Title 2 Social Security Disability Insurance benefits (SSDI aka DIB), their spouse (husband or wife) and minor children can also receive benefits because of the spouse’s / parent’s disability. These are called auxiliary benefits.

I previously coved how Social Security benefits stop if a disabled person is goes to jail / prison.  

So, what happens to the children’s or spouse’s benefits if the disabled individual is incarcerated: goes to jail or prison?  

Do the wife or husband’s auxiliary benefits stop?

Do the children’s auxiliary benefits stop?

The best answer I have been able to find to this question is in the Social Security Online Handbook. Part 501. Entitlement to Disabled Worker’s Benefits says,

“Auxiliary benefits” are additional monthly benefits (see Chapter 3). These benefits may be payable to other family members on your earnings record if you are entitled to disabled worker’s benefits. They are payable to your family members even when you are not receiving benefits because of imprisonment.

So, it looks like, yes, auxiliary benefits to spouses or children are payable even thought the disabled individual is incarcerated and cannot receive Social Security benefits him/herself.

However, keep in mind that the Social Security Handbook is a guide explaining to how Social Security is supposed to work.  The Social Security Handbook has no binding legal authority. So take this answer with a bit of caution.

Did you know that you can get Social Security benefits based on your spouse’s earnings, even if you are divorced?

Click to read who is entitled to wife’s or husband’s benefits as a divorced spouse?

You are entitled to wife’s or husband’s benefits as the divorced wife or divorced husband of an insured person who is entitled to old-age or disability benefits if you meet the requirements of paragraphs (a) through (e). You are entitled to these benefits even though the insured person is not yet entitled to benefits, if the insured person is at least age 62 and if you meet the requirements of paragraphs (a) through (f). The requirements are that-

(a) You are the insured’s divorced wife or divorced husband and-

(1) You were validly married to the insured under State law as described in §404.345 or you were deemed to be validly married as described in §404.346; and
(2) You were married to the insured for at least 10 years immediately before your divorce became final;

(b) You apply;

(c) You are not married. (For purposes of meeting this requirement, you will be considered not to be married throughout the month in which the divorce occurred);

(d) You are age 62 or older throughout a month in which all other conditions of entitlement are met; and

(e) You are not entitled to an old-age or disability benefit based upon a primary insurance amount that is equal to or larger than the full wife’s or husband’s benefit.

(f) You have been divorced from the insured person for at least 2 years.

For most individuals, the important factors are that both you and ex have to be at least 62 years old, you are unmarried and you have to have been divorced for at least 2 years. 

Click to read Social Security’s §404.331 on who is entitled to wife’s or husband’s benefits as a divorced spouse.

I was recently asked this question:

My Ex is getting Social Security disability benefits.  I have custody of our kids.  Can my kids get any benefits because of my ex’s disability?

Perhaps, but you have to meet several requirements:

1. The disabled parent must be receiving Title 2 Social Security Disability benefits. If the parent is receiving Title 16 SSI benefits, there are no auxiliary benefits available.  Auxiliary benefits are benefits paid to a spouse or minor child of a disabled individual.
2. You have to be able to prove that the child is the child of the disabled parent.  This is usually a non-issue, but there are instances where this is disputed.  For example: the father may be in and out of the picture, his name may not be on the child’s birth certificate.  Later the father becomes disabled.  If the father does not acknowledge the child, it may be difficult to get benefits for the child. 
3. The child has to be under 18 (or 19 if in school).

This great discussion of eligibility for children’s benefits appears on Jonathan Ginsberg’s blog.

If your spouse is disabled and entitled to Social Security Title 2 benefits – Disability Insurance Benefits, you may be entitled to receive benefits from Social Security.

These benefits are called “auxiliary benefits.”

It is important to remember that auxiliary benefits are only available if the disabled spouse (disabled husband or disabled wife) is receiving Disability Insurance benefits. There are no auxiliary benefits when the disable spouse is receiving Social Security Title 16 Supplemental Security Income (SSI) benefits.

Am I entitled to Social Security auxiliary benefits?

In a nutshell, spouses have to be either:

1) 62 or older, or

2) have a child in their care who is either

a) under the age of 16, or

b) disabled.

Let’s look at the regulations. You are entitled to benefits as the wife or husband of an insured person who is entitled to old-age or disability benefits if you meet the criteria listing in 20 CFR 404.330:

(a) You are the insured’s wife or husband based upon a relationship described in §§404.345 through 404.346 and one of the following conditions is met:

(1) Your relationship to the insured as a wife or husband has lasted at least 1 year. (You will be considered to meet the 1-year duration requirement throughout the month in which the first anniversary of the marriage occurs.)

(2) You and the insured are the natural parents of a child; or

(3) In the month before you married the insured you were entitled to, or if you had applied and been old enough you could have been entitled to, any of these benefits or payments: Wife’s, husband’s, widow’s, widower’s, or parent’s benefits; disabled child’s benefits; or annuity payments under the Railroad Retirement Act for widows, widowers, parents, or children 18 years old or older;

(b) You apply;

(c) You are age 62 or older throughout a month and you meet all other conditions of entitlement, or you are the insured’s wife or husband and have in your care (as defined in §§404.348 through 404.349), throughout a month in which all other conditions of entitlement are met, a child who is entitled to child’s benefits on the insured’s earnings record and the child is either under age 16 or disabled; and

(d) You are not entitled to an old-age or disability benefit based upon a primary insurance amount that is equal to or larger than the full wife’s or husband’s benefit.

I know, it is all very legalistic.  Fortunately, Social Security has a much better summary in their, What Every Woman Should Know FAQ.

If you have not worked or do not have enough Social Security credits and you are married, you may be eligible for Social Security benefits as a result of your husband’s work. You and your children (younger than age 18 or younger than age 19 if still in secondary school or disabled before age 22) have Social Security protection through your husband’s work. When he retires, or if he becomes disabled, you could be eligible for benefits as early as age 62. If you are caring for your child who is younger than age 16 or disabled and entitled to benefits, you could receive benefits at any age.

Spouses of a disabled individual Auxiliary benefits are normally processed automatically along with the spouse’s disability benefits.  But, if for some reason they were not, it may be a good idea to contact Social Security to see if you qualify.

Updated 05/22/09.

If an individual is disabled and entitled to Social Security Title 2 benefits – also called Disability Insurance benefits, his or her minor children can also receive benefits from Social Security.

These benefits are called “auxiliary benefits” by Social Security.

It is important to remember that auxiliary benefits are only available if the disabled parent (disabled mother or disabled father) is receiving Disability Insurance benefits.  There are no auxiliary benefits when the disable parent is receiving Social Security Title 16 Supplemental Security Income (SSI) benefits.

Other than the parent being disabled, what else do you need to receive children’s benefits?

This is governed by 20 CFR 404.350 “Who is entitled to children’s 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.

So, if you are disabled, receiving Disability Insurance benefits from Social Security, and have an unmarried child under 18, they should already be receiving children’s benefits.  If not, apply for them.

A child may be entitled to receive Social Security child’s benefits if a parent dies. These are called survivor’s benefits.

However, under Social Security Regulations (20 CFR 404.352), the entitlement to child’s benefits may end for any of the following reasons.

1. You turn 18 years old and are not disabled or a full-time student. Benefits end the month before the month in which you became 18 years old. Why does Social Security has to say, “the month before the month” rather than 2 months before? I have no idea.
2. You are 18 (or older) and your disability ends. Benefits end with the second month following the month in which the disability ends. Exception: your benefits may be continued after your impairment is no longer disabling if you are participating in a program of vocational rehabilitation services, employment services, or other support services and you meet other requirements described at the bottom of this page.
3. You turn 19 and are not disabled. If you have not yet gotten your diploma or certificate, benefits can be paid until the last month of the semester or quarter in which you turned 19. Actually, Social Security’s language is even more hairy. The regulation says the entitlement ends, “With the last month you are a full-time student or, if earlier, with the month before the month you become age 19, if you become 18 years old and you qualify as a full-time student who is not disabled. If you become age 19 in a month in which you have not completed the requirements for, or received, a diploma or equivalent certificate from an elementary or secondary school and you are required to enroll for each quarter or semester, we will find your entitlement ended with the month in which the quarter or semester in which you are enrolled ends. If the school you are attending does not have a quarter or semester system which requires re-enrollment, we will find your entitlement to benefits ended with the month you complete the course or, if earlier, the first day of the third month following the month in which you become 19 years old.” Got all that?!
4. You are married. Benefits end “the month before the month” you marry. Exception: your benefits will not end if you are age 18 or older, disabled, and you marry a person entitled to child’s benefits based on disability or a person entitled to old-age, divorced wife’s, divorced husband’s, widow’s, widower’s, mother’s, father’s, parent’s, or disability benefits.
5. [omitted - this reason for stopping benefits deals with cases of entitlement to child's benefits not when a parent is dead, but when a parent is alive and receiving either old-age or disability benefits. Since this article only deals with why child's benefits paid because of a death of a parent may terminate, this reason is beyond the scope of this article.]
6. If you die.

If you were disabled, but your impairment is no longer disabling, your benefits may be continued if you meet the following requirements. Note: I am quoting directly from the regulations here.

1. “You are participating in an appropriate program of vocational rehabilitation services, employment services, or other support services, as described in §404.327(a) and (b);
2. “You began participating in the program before the date your disability ended; and
3. “Social Security has determined under §404.328 that your completion of the program, or your continuation in the program for a specified period of time, will increase the likelihood that you will not have to return to the disability benefit rolls.”

If you qualify to continue to receive child’s benefits after your disability ends (as described above), Social Security may continue to pay your benefits until—

1. “The month in which you complete the program; or
2. “The month in which you stop participating in the program for any reason (see §404.327(b)); or
3. “The month in which Social Security determines under §404.328 that your continuing participation in the program will no longer increase the likelihood that you will not have to return to the disability benefit rolls.”

If you are 18 years old or over and disabled, and drug addiction or alcoholism is a material factor in the determination of your disability, there are special rules which may terminate your eligibility for child’s benefits. See §404.352(c).

Updated 04/30/09.