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.

I was recently asked if Social Security child’s benefits continue for a full time student who is 18 or over. At first blush, the regulations seem to suggest it might be possible.

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. Under this section, it appears an individual has 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.

There is a “however.”

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

As such, it appears that the child’s benefits are only paid to full time students over 18 while they are still in high school.

As always, I encourage contacting Social Security for answers on how the regulations apply to any individual’s specific circumstances.

Children can get Social Security benefits if they have a parent who is receiving Social Security Disability Insurance benefits (SSDI). 20 CFR 404.350 is the regulation dealing with who is entitled to Social Security child’s benefits. Generally, the child has to qualify as the parent’s child (more on this in a moment), be dependent on the parent, unmarried, and under 18.

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 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.

See my other articles on auxiliary benefits are other types of Social Security benefits you may not be aware of.

I was asked to address some of the issues parents should consider when deciding whether to start an application for Social Security disability benefits (typically children’s Supplemental Security Income – SSI – benefits) for their disabled child.

Many parents worry that if their child receives Social Security disability benefits, they will be labeled as “disabled,” and carry that for the rest of their lives. Even beyond being on disability, the child may be diagnosed with a socially stigmatizing condition such as mental retardation.

I want my child to have a normal life.  I want my child to overcome this. Will being “disabled” make my child stop trying?

I believe that disability can largely remain a private matter. It is possible for a child to be on Social Security disability benefits and not have other students, their parents, or even the school know. Of course, this depends on the nature of the disability and medical practicalities. In many cases, the school should be aware of disabling medical conditions to allow the child to have access to medications at school and to let the school take appropriate action in case of a medical emergency. Also, you may want the school to know so an appropriate Individualized Educational Plan (IEP) or 504 Plan can be put into place.

Parents should consider what receiving Social Security benefits might provide and weigh that against the potential negatives. Children’s Social Security benefits usually consist of a monthly benefit amount plus Medicaid benefits. Medical benefits provided by Medicaid are often the main reasons parents apply for their children. Medicaid helps many parents getting out of the local clinic, and opens new treatment possibilities such as seeing a specialist, and obtaining speech, occupational, physical, and cognitive therapies.

Ultimately, I believe it comes down to this, if you feel that the treatment options possible under Medicaid can help your child, it may be time to consider applying for Social Security benefits.

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.

One of the best tips I can give about building a child’s Social Security (Supplemental Security Income) case is to hold on to any disciplinary report, office notes, write ups, teachers notes, detention or suspension notices, etc.

This includes notes for:

• Talking out of turn
• Not following instructions
• Not sitting down
• Fighting
• Yelling
• Being disruptive 
• Cursing
• Throwing things

These documents are an important source of independent evidence about the child’s problems at school.

“Independent evidence” is key.  Social Security looks for  corroboration of the problems the family will tell them about.  Reports from teachers, counselors, administrators, coaches, can be extremely valuable in proving the type and severity of the child’s problems.

Unfortunately, based on my experience in Colorado, a lot of schools do not keep these write-ups in the student’s permanent file.

So, if you do not hold on to these documents, they may not be available when you are trying to prove your child’s disability claim.

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 reenrollment, 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. [omited - 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.

Children can be entitled to receive Social Security child’s benefits if the deceased parent was fully insured by Social Security and if they meet 5 tests:

1. The child is the insured person’s child. See §§404.355 through 404.359;
2. The child is dependent on the insured. See §§404.360 through 404.365;
3. The child applies for benefits;
4. The child is unmarried; and
5. The child is under age 18; – OR – 18 years old or older and has a disability that began before the child became 22 years old; – OR – the child is 18 years or older and qualifies for benefits as a full-time student in a primary or secondary school as described in §404.367.

See 20 CFR 404.350 for more information.

Updated 04/30/09.

Survivors’ benefits are a type of Social Security benefits paid to surviving family members when someone dies.  This may include benefits paid to the widow(er), parents or children.

In my experience, not a lot of attorneys take survivors’ benefits cases so it is difficult to get your questions answered:

• Am I, or my children, eligible for survivors’ benefits?
• When am I, or my children, eligible for survivors’ benefits?
• Social Security stopped my, or my children’s, survivors’ benefits.  Why?

Social Security has a Electronic Fact Sheet which provides a summary of who may be eligible to receive monthly benefits. If Social Security stops your survivors’ benefits, knowing who may be eligible can help you figure out if the cessation of benefits is proper or not.  

Some of the deceased’s family members may be eligible to receive Social Security benefits if the deceased person worked long enough under Social Security to qualify for benefits. 

Who can get survivors’ benefits?

1) A widow or widower age 60 or older (age 50 or older if disabled);

2) A surviving spouse at any age who is caring for the deceased’s child under age 16 or disabled;

3) An unmarried child of the deceased who is: a) Younger than age 18 (or age 18 or 19 if he or she is a full-time student in an elementary or secondary school); or b) Age 18 or older with a disability that began before age 22;

4) Parents, age 62 or older, who were dependent on the deceased for at least half of their support; and

5) A surviving divorced spouse, under certain circumstances.

These benefits are in addition to the one time “death benefit.”

A one-time payment of $255 can be paid to the surviving spouse if he or she was living with the deceased; or, if living apart, was receiving certain Social Security benefits on the deceased’s record. If there is no surviving spouse, the payment is made to a child who is eligible for benefits on the deceased’s record in the month of death.

Note:  this is just an overview.  There are specific requirements to qualify for each of these programs.