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When in doubt, demand to file a benefit claim

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POSTED January 24, 2014 9:43 p.m.

 

Q: Even though my husband and I lived together for 20 years, we didn't actually get married until two years ago. Sadly, he died last month. When I went down to the Social Security office to file for widow's benefits, the clerk told me we had to be married at least 10 years, so she said I wasn't due anything. She helped me file for the $255 death benefit, and that's all I got. But lately, some friends told me I should be getting widow's benefits. What should I do?

Q: My husband and I have been raising our four-year-old granddaughter for several years. The father has never been in the picture, and the mother (our daughter) just isn't able to care for the child. My husband just died. I called the Social Security Administration several times asking if our grandchild could get benefits on his record. And I got different answers each time I talked to someone. Some said I wasn't due benefits. Some said I would be due benefits if I adopted the child. I'm confused and don't know what to do. Can you help?

Q: I am 62 years old. I called Social Security's 800 number and told them I wanted to file for my Social Security benefits. I run my own business, but plan to turn it over to my wife (at least on paper) and pay myself a salary of $15,000 per year so I will be under Social Security earnings limit and thus eligible for my monthly checks. The telephone rep I talked to told me I was eligible for benefits and she set me up for a phone interview with someone at my local Social Security office. But when the local office representative called me, he said I was not eligible for benefits and terminated the interview. Do I have any recourse?

A: These are examples of the kinds of emails I get almost every day. And they will help me illustrate this very important point: YOU HAVE EVERY RIGHT IN THE WORLD TO FILE FOR WHATEVER SOCIAL SECURITY BENEFIT YOU THINK YOU ARE DUE. So whenever there is any doubt about your eligibility, always demand to file a claim.

By doing so, you accomplish two things. One, you will get a legal decision about your eligibility for benefits, and not just one Social Security clerk's opinion (or one Social Security columnist's opinion). And two, you will have appeal rights. In other words, if your claim is denied, and you still are not satisfied, you can ask that your claim be reviewed. You even could take it all the way to the Supreme Court if you wanted to! That last comment is a little far-fetched (although feasible). However, my basic point is very valid. If a Social Security clerk just says "no" and you walk away and later learn you were due benefits, you generally won't be able to do anything about it but gripe — and then file a claim with no retroactivity. But if you actually file a claim the first time, and it is denied, you will get full retroactive benefits to the date you filed the claim if you later are able to prove your eligibility.

That is the overall message to everyone reading this column: Always demand to file a claim for benefits if you think you might possible be due them — no matter what a Social Security clerk tells you. And especially do so if you get different answers from different SSA representatives. (Sadly, I hear the latter complaint far too often from far too many of my readers.)

But now let me give my opinion to each of the people whose emails I included in this column.

Unless I am missing some of the facts, the widow who was married for a couple years before her husband died was given bum advice by the Social Security rep to whom she talked. The 10-year duration of marriage rule applies only to divorced spouses. So assuming this woman was still married to her husband when he died, is old enough for widow's benefits and is not getting higher benefits on her own Social Security account, she should be getting widow's benefits and should file a claim immediately.

The lady who is caring for her grandchild probably cannot get surviving child's benefits for the child on her husband's record. But there are so many ifs, ands or buts associated with this issue (variables I don't know about the case), that she should simply demand to file a claim and get a legal decision. Generally, benefits can only be paid to a child from a grandparent's Social Security account IF both the child's parents are deceased or disabled. Barring that, benefits can be paid if the grandparents adopt the child. Because there was no adoption before the grandfather's death, that eligibility factor appears to be out the window. It wouldn't do any good for the grandmother to adopt the child now UNLESS she has her own Social Security account, in which case the child would then be due benefits on grandma's record.

The guy with the business is treading a fine Social Security eligibility line. In the past, the rules were pretty stringent: He would not have been able to simply turn the business over to his wife on paper and pay himself a minimal salary and then expect to collect Social Security retirement benefits. But recently, SSA has eased up on these rules and he may be eligible. Again, the only way he will find out for sure is to file a claim.

So, I hope all my readers get the message: When in doubt, demand to file a claim for benefits to get a legal decision.

 

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