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.

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 not 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.