Disability Claims and Appeals After Death

Unfortunately, many Social Security Disability claimants die before they are awarded benefits. Many people eligible for benefits never apply before dying. In some cases, family and heirs can continue the claim or start one. What can be done and who receives any potential benefits depends on what SSA disability programs the deceased worker was eligible for. There are two basic types—SSDI based on the worker's own earnings record and SSI based on low income and assets.

SSI Claims

Starting SSI Claims After Death

SSI claims generally cannot be started after a person dies. This is because SSI doesn’t pay any benefits before an SSI application is filed. If a person contacted SSA and made an inquiry about filing before he or she died, a beneficiary can file an application within 60 days of the “protective filing” date—or longer if SSA didn’t send a “close out” notice advising the claimant of when protective filing period ended.

Continuing SSI Claims After Death / Beneficiaries

If a person with an active SSI claim dies before benefits are awarded, generally only a spouse living in the same household can pursue an active SSI claim and collect an underpayment (Any financial benefit due a deceased worker’s beneficiaries is called an underpayment). If the spouse is receiving SSI, he or she does not have to be in the same household at the time of the claimant’s death.

Not all states have their own disability benefit programs. Those which do can continue an SSI claim when a claimant has signed an agreement to repay the state any benefits received in months where SSI is payable retroactively. The state can also pursue an SSI death claim to establish retroactive Medicaid eligibility. When a state has paid for the deceased claimant’s care, it may save the state money if Medicaid can be billed for past medical treatment costs.

SSDI Claims

Because SSDI benefits are based on taxpayer contributions rather than poverty, SSA is more liberal when it comes to filing and continuing posthumous disability claims. There’s almost always a potential beneficiary—or more than one. Before SSA pays them, though, SSA will honor legitimate liens on the deceased worker’s SS record for child support and money owed to other federal agencies like the IRS, VA, SSA, Dept. of Education or USDA.

SSDI Beneficiaries

Any party of interest to a deceased worker's SSDI claim can pursue an SSDI application, appeal or hearing, even if he or she is not the primary beneficiary. In an SSDI case, payments are made in the following order (unless a court determines a beneficiary intentionally caused the claimant’s death—that person can’t collect anything):

1. To the surviving spouse who was either living in the same household as the deceased at the time of death or who, for the month of death, was entitled to a monthly benefit on the same record as the deceased; if there is no surviving spouse then
2. To children (in equal shares) who, for the month of death, were entitled to a monthly benefit on the same earnings record as the deceased; if there are none, then
3. To parents (in equal shares) who, for the month of death were entitled to a monthly benefit on the same earnings record as the deceased; If there are none entitled, then
4. To a surviving spouse (or spouses, in equal shares) not qualified under A. above; If there are none, then
5. To children not qualified under B. above—i.e., adult children (in equal shares); If there are none, then
6. To parents not qualified under C. above; if non, then
7. To the legal representative of the deceased person's estate.

So, for example, if the deceased worker is divorced, his or her minor children would be entitled to an equal share of any underpayment—whether the children lived with the worker or the ex-spouse. But, the claimant’s mother or estate executor can continue the claim even if that person would receive no benefits because they are further down on the list of beneficiaries. Why would someone who can’t collect the underpayment pursue an SSDI death claim?

• He/She may be a nice person who wants to help someone else in the family who would have difficulty handling the SSA claim or can’t be located yet.
• He/She may be eligible for a survivor’s benefit on the deceased worker’s account and will get a better benefit if the deceased worker is found “disabled” before his or her death.

Filing an SSDI Claim After Death

Any beneficiary can file an application for the deceased worker if:

• Before death, there was a written statement sent to SSA documenting that the worker intended to file for disability benefits. This protects a filing date for up to 6 months-- or longer if SSA doesn’t issue a notice stating when the protective filing period ends.
• Within 3 months after the month of the worker’s death.

SSA never pays SSDI benefits for the first 5 full months after a person is found “disabled.” That’s called the "SSDI waiting period." SSA also can’t find someone disabled if they are performing gainful work, even if the person is terminally ill. If either or both conditions apply, SSA can refuse to take the SSDI application after the worker’s death.

Continuing an SSDI Application or Appeal After a Claimant's Death

Does SSA notify you that a disability claim is pending after a relative’s death and that you may benefit from a favorable SSDI or SSI disability determination? Maybe or maybe not. SSA won’t spend much or any time looking for a beneficiary to pay or file a claim if there’s not an obvious one noted in the file like a wife or children with a known address. If the underpayment amounts to less than $50, SSA doesn’t have to contact even obvious beneficiaries.

When a pending case is at the application or reconsideration levels, SSA will continue to work on the claim until a decision is made. Notices will be sent to the claimant’s last known address. Receipt of that notice by whoever has responsibility for the claimant’s mail often triggers a contact with SSA. If the claimant dies while his/her case is at the hearing level and a hearing hasn’t taken place, the Office of Disability Adjudication and Review (ODAR) will initiate an inquiry into finding a substitute party to pursue the hearing.

How Can a Professional Social Security Advocate Help in Death Claims?

If the deceased claimant was already represented, that person continues to have authority to file appeals on behalf of the claimant. He or she can help identify and find beneficiaries and counsel them about their rights. If the deceased claimant was not represented, a beneficiary can hire one to help continue the claim, advocate for a favorable decision, and ensure payments after an award are properly distributed.

Find Additional Benefits

An experienced representative can also look into other benefits and claims that SSA may not discuss with beneficiaries. For example, if the deceased worker had a disabled child over 18, that child may be eligible for disabled adult child (DAC) benefits and need help proving their case.

Widows/Widower Benefits

Is there a spouse over 50 who is disabled or will reach that age within 7 years of the deceased client’s death (or the last payment of a survivor’s benefit)? A representative can help with a disabled widows or widower benefit claim.

Medicare

Eligibility for Medicare is triggered by an SSDI disability award involving 24 months of payments. This may help the deceased claimant’s heirs more than the payment of disability benefits when a last illness has been costly and there are attachable assets in an estate. If the deceased claimant has a prior claim for disability benefits that was not appealed before the last one was started, a representative may be able to help get that claim reopened, accessing Medicare and a larger underpayment for the beneficiaries.

Most representatives will help explore posthumous claim feasibility and appeal continuance at no charge or obligation and relieve families of at least one burden during a stressful and difficult time.

For more information, see our article on how to handle a disability claim after the applicant dies.