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Social Security News
By Charles E. Binder
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(This is a short excerpt from Charles Binder’s soon to be published book.)
Here are a few more questions our clients most often ask us about Social Security Disability: |
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- I have recently received notification for a Continuing Disability Review. I’m told I can keep my benefits until the hearing. Is this true?
Generally, you are allowed to continue your monthly benefits until the administrative hearing if the Social Security Administration’s reason for ceasing your disability benefits is because of medical improvement. In other words, if the government looked at your case again and decided you were no longer disabled, but you and your doctors feel you are still disabled, you are allowed to continue your monthly benefits while waiting for that year or almost two years for your hearing to be held. If, on the other hand, you were ceased for some other reason, that is, you have been working or they found some fraudulent activity in your application, then they will not continue the benefits.
- I want my benefits continued through the hearing, but will I have to pay them back?
The answer is legally yes, but practically no. If you cannot afford to pay back the benefits, you would be entitled to a waiver of the payments. Unless you have done something wrong, you are not at fault in requesting your benefits to continue until the hearing. The statute specifically authorizes you to do so. If you are not at fault, you only need show that it would be a financial hardship to pay it back. It is very rare to find a claimant who is so financially comfortable that Social Security benefits do not represent a significant part of their income. Very few would not have trouble paying back the disability benefits. Those who can afford to pay back the benefits if they lose will have to pay back the benefits. You do not have to pay back Medicare if you’ve seen a doctor.
- Is my spouse eligible for benefits from the money I will receive?
Good question, lots of answers. And the answers all depend on what are the facts. If you are disabled and your spouse is still working, and has no dependents, the answer is the spouse does not receive any money. If your spouse is not working but is home raising children under 18, the answer is the family receives benefits. It used to be that every dependent, every child and spouse, got a minimum amount of money no matter how much you got. So before 1978, even the poorest migrant worker could get a huge check if he had lots of children. Now, benefits are determined by how much the family is entitled to, which cannot exceed 150% of what the wage earner gets. For example, if you were getting $800 a month, and you had two children under 18 and your husband did not work, you would get $800, and the family would share $400. If only one child were under 18, that remaining child would still get $400. If your husband were working, the children under 18 would still receive between them $400. So there is no financial incentive for the spouse to remain at home. Unfortunately, many spouses have to remain at home to take care of the disabled worker.
- What about when I retire?
The spouse will continue to receive benefits at retirement. If you retire at age 65, the amount you are getting under disability will be transferred from the disability trust fund to the Social Security retirement trust fund. You won’t know the difference since the amount will be the exact same. The same thing with your spouse. If your spouse waits until full retirement age, your spouse will get $400 (50%) if you are getting $800. But what if your spouse has earned more money than you? Then the spouse gets the option of taking half of your amount, or taking his own amount. If your spouse is receiving $500 a month on his own earnings record, then it would make sense for him to retire on his own earnings record at $500 a month rather than accept $400 (1/2 of yours). And not surprisingly, the government will automatically give everybody the maximum amount for which they are eligible.
- Suppose that the husband makes a lot more than a wife. Would the wife be better off waiting instead of applying for disability?
If the wife’s disability amount is $800 per month, and the husband’s amount is $1600 a month, at retirement age, she would be able to take hers or his and they would be the exact same. But if her disability amount at retirement age was less than half of his, she should switch to his retirement. In other words, if the wife’s monthly check under disability is less than half of her husband’s, then at 65 she should take half of her husband’s retirement instead of her own disability. Sometimes, however, it gets very complicated—you probably thought it already was too complicated--because there might be an offset that affects the wife’s disability but not retirement. Then it turns out a claimant is better off taking retirement even though the disability amount on paper appears to be greater.
- Will my spouse’s income have anything to do with my case?
Generally, it doesn’t matter how wealthy your spouse is or how poor your spouse is. Everyone applies on their own earnings record. With SSI cases, however, any income by the spouse is deemed available to you.
- Can I receive benefits if my wife is disabled?
Yes, there are special provisions for spousal insurance benefits. You can receive spousal benefits if your wife is entitled to disability benefits and you are not entitled to a retirement or disability insurance benefit, which is more than half of your spouse's. You have to be 62, or have a child under 16. You have to be married to your wife for at least a year, or be the natural mother or father of the spouse's child. The requirements for being married for a year have to do with the wish to avoid having people who are dying getting married at the last minute so that a new spouse can receive widow(er)’s benefits. There are exceptions, as well, depending on whether death was foreseeable. Marrying someone with terminal cancer the week before he dies is different than marrying someone who then dies unexpectedly the following month in a car accident. There are very complicated rules regarding marital status and when people can get remarried if either or both are on benefits through another person's earnings record.
- Can you get retirement benefits if you were married for a long time and are divorced?
Yes, if you were married for ten years before the date the divorce became final and you are not married now.
- I've been living with this person and we consider ourselves to be man and wife. Am I eligible for benefits on his earnings record as a common-law wife?
It depends on whether you live in a state where common law marriage is legal. For example, in New York State, common law marriage was abolished in 1933. If you are legally married in New York, it doesn't matter that you describe yourself as married to others. You can hold yourself out as husband and wife, you can file joint tax returns, you can even think that you are legally married, but you're not. And if you're not married legally in the state in which you reside, you are not eligible for benefits as a married person. On the other hand, if you live in a state where common law marriage is legal, if you hold yourself out as married and are otherwise deemed to be a common law marriage in that state, the Social Security Administration will accept that as a valid marriage. You can imagine how complicated this gets. If you lived as husband and wife in a common law state for a long period of time, and your marriage would be deemed legal, all the other states have to accept that, as does the Social Security Administration. But then suppose you move to another state where common law marriage is not legal. Are you common law married? Generally, the answer is if you were legally common law married in a state, then you remain married when you move out of the state according to most state laws. But there are 50 states, and there are various territories, all of which have separate rules, and this is not a treatise on the impact of common law marriage.
- I married my late husband 20 years ago and it turns out now he was not legally divorced when we got married though he thought he was legally divorced. Am I a disabled widow, or is his first wife the disabled widow?
There is a concept called the "deemed" widow. If you marry in good faith but there is a legal flaw – you married before the Clerk entered the final judgment on a divorce from the last spouse, the government doesn't punish you for these technical errors. Sometimes the spouse tells the second spouse he got divorced but never did. Under these circumstances, there may well be two disabled widows, one legal and one "deemed." Similarly, you can have a divorced spouse and a widow who might both be eligible for benefits on the same deceased husband’s earnings record.
(Next month, Charles will answer ten more of the 100 most asked questions about Social Security Disability. If you’d like us to notify you when Charles Binder’s book is published, please call 1-800-662:4633, or E-mail info@binderandbinder.com.
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