Is This Correct?

Apr 8 2018 - 7:13am

Hi Larry,
Am I ever glad I found you. Here is my current situation. I was married for 28 years and was a stay at home mom. We did divorce 20 years ago, and he remarried. I am not married. I will be FRA, 66, on June 19 this year. I am working but have not paid in a lot to build my SS, but I have been trying. My benefit would be about $700.00 a month. It was my intention to see if I could collect on my ex husband's earnings when I applied for SS. I was waiting for FRA because I didn't want to worry about any potential earnings penalties.
Then my ex husband died in February. I had a meeting scheduled at my local SS office to sign up in March, his death changed that picture. I gathered all the necessary documents I would need and went to the appointment. I qualified to draw on his record, and they told me that it would be at 100%, $2739.00, as he was a high wage earner all those years. I opted to have taxes taken out at 12% giving me a benefit of roughly $2250.00 a month.

Then this past Wednesday the representative called me and told me that he was adjudicating my case, and that my payments would be figured at 82.5% of his PIA, not the 100% I was told initially. When I questioned him on that, he said it was because 'your former spouse had not starting drawing his benefits yet'. He was 68 when he died and he had not starting drawing, that part is true. I told the agent that made no sense to me whatsoever, that I would receive LESS because my ex hadn't started to draw. He put me on hold, came back and assured me that it was correct, I would get the 82.5%.

Now I am totally confused. I have read all the information I can find on the SS site but no where do I see that this percentage penalty should be applied here. I DO realize that because I applied 3 months short of my FRA, that my funds would be slightly reduced. I asked him what that amount was per month and he answered, "$21.00". The difference between the 100% and 82.5% is $470.00 per month. Substantially different!

I called the SS line and was on hold for 1.5 hours, and when I talked with a representative there he said, 'wait for your paperwork and file an appeal if you think it's wrong'. Not terribly helpful I'm afraid.

So my questions are,
Is this reduction correct in light of the fact my ex at age 68 was NOT drawing his SS benefits? (he was getting Medicare, as am I)
And if this is incorrect and I get the lowered amount, what steps should I take to remedy the situation? How successful would an appeal be?

Thank you for your time.
Deb

Hi Deb,

No, it certainly doesn't sound correct based on the facts you describe. Your widow's rate would only be limited to 82.5% of your ex-husband's PIA (primary insurance amount) if he HAD been drawing reduced retirement benefits prior to his death. If he never drew any Social Security benefits and died at age 68 your unreduced widow's rate should be more like 116% of your ex-husband's PIA, since your rate would include the delayed retirement credits (DRC) (https://www.ssa.gov/planners/retire/delayret.html) that your ex accrued from his full retirement age (FRA) up until his month of death.

I don't know if it will help, but if you can't speak with a supervisor or a member of management in the office where you filed your claim you could try pointing out section RS 00615.320 of Social Security's operations manual (https://secure.ssa.gov/apps10/poms.nsf/lnx/0300615320) to the Social Security representative with whom you spoke. That is the section that explains that the 82.5% widow's rate only applies if the deceased worker did draw reduced retirement benefits prior to dying. And, RS 00615.706 (https://secure.ssa.gov/apps10/poms.nsf/lnx/0300615706) and RS 00615.708 (https://secure.ssa.gov/apps10/poms.nsf/lnx/0300615708) are the sections that explain that your unreduced widow's rate should actually be equal to your ex's full PIA inclusive of any DRC's that he accrued prior to his month of death.

If that doesn't work and your benefit rate is miscalculated, then your only recourse would be to file a formal appeal (https://www.ssa.gov/pubs/EN-05-10041.pdf). If it gets to that point, you will want to cite the above manual references when you submit your appeal. I can't imagine that your appeal would be unsuccessful, assuming that you have all of your facts straight. It really shouldn't come to that, though, since it certainly doesn't sound like your case is the least bit complex.

I should also mention that based on your description of the facts of your case, it sounds like your optimal strategy would likely be to initially claim benefits on your own record and wait until the month you turn FRA to claim your survivor benefits. That way you would receive your unreduced survivor rate for as long as you live. That part's up to you to decide, but you might want to run your numbers using our maximization software in order to compare your options.

Best, Jerry