Am I Correct That I Should Have Been Paid Benefits In The Past, And Can I Do Anything About It Now?

May 21 2020 - 8:32am

My former spouse died at the age of 36 in 1995. I was 37, and cared for our two children, who were 10 and 7 at the time of his death. I applied for survivors benefits and advised I would receive three separate checks for each of us. When the following month came, I only received two checks, one for each of the children individually. I called the office to inquire about it and was then told I didn't qualify for widows benefits. I didn't apply for widows benefits, I applied for survivors benefits, which they had that information. I was the mother and caregiver of our children and we were married for more than nine months, but not ten years. My understanding the benefits are payable at any age, and payable for a lifetime. I never received the ex-spousal survivors benefits and I have never remarried. I will be 62 this year and believe the agency misinformed me of my eligibility, which caused a huge economical loss for me and my family through the years and into the future. Am I correct in this? If so, is there anything I can do about it now? I just found out about my eligibility recently. Thank you for any assistance.

Hi,

I'm not sure whether or not you mean that you were divorced from your spouse at the time of his death, but either way it sounds like you would have qualified for survivor benefits if you had a child in your care who was under age 16 and who was eligible for benefits on your husband's record. The only way that you'd still qualify for those benefits is if you have a child in your care who's disabled and eligible for disabled adult child benefits on your husband's account.

What you'd need to do to potentially collect back pay depends on what whether or not you filed an application for benefits. If you applied for benefits and your claim was disallowed, you normally must file an appeal within 60 days of your notice of disallowance. Even though you're outside of your appeal period, though, Social Security might be able to reopen the decision on your disallowed claim if you submit a written request for reopening (https://secure.ssa.gov/apps10/poms.nsf/lnx/0204001050). The time limit for reopening a claim is usually 4 years from the date of the disallowance notice, but claims can be reopened regardless of how much time has passed if the determination was clearly incorrect based on evidence available to Social Security at the time of their determination.

However, if you never filed an application for survivor benefits, then your only hope for collecting back pay would likely be if you could prove that you failed to apply due to misinformation you received from Social Security. The following section of Social Security's operations manual explains what's required to establish misinformation: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200204008.

You don't mention whether or not you had earnings during the time that your children were young, but if you did then it's possible that your survivor benefits would need to have been withheld due to your earnings. In other words, even if you had applied for benefits and your claim was approved, it's possible that you weren't eligible to actually collect any benefits if you were working and earning too much. For example, in 1995 $1 of your benefits would need to have been withheld for each $2 that you earned in excess of $8,160 that year.

If you were married for at least 9 months and not divorced from your husband at the time he died then you could potentially qualify for widow's benefits as early as age 60 regardless of whether or not you have children. But, if you were divorced at the time of your husband's death and your marriage lasted less than 10 years then you couldn't qualify for survivor benefits unless you have an eligible child in your care as explained above.

Best, Jerry