Disability Claims and Appeals After Death

Unfortunately, many Social Security Disability applicants die before they are awarded benefits. Many people eligible for benefits never apply before dying, while others die during the many months it takes to get disability benefits approved. In some cases, family and heirs can start a disability claim or continue one that's already open. 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, and after the person dies, there is no one who qualifies for a monthly disability payment.

But, if a person contacted the SSA and made an inquiry about filing for disability benefits before he or she died, a beneficiary can file an application within 60 days of the "protective filing" date—or longer if the SSA didn't send a "close out" notice advising the applicant of when the protective filing period ended.

Continuing SSI Claims After Death / Beneficiaries

If a person with a pending SSI disability claim dies before benefits are awarded, generally only a spouse living in the same household can pursue the SSI claim and collect money that would have been awarded to the applicant. The SSA calls this an "underpayment" since the applicant wasn't paid what was due.

If the spouse is receiving SSI, he or she does not have to be in the same household at the time of the applicant's death.

Not all states have their own disability benefit programs, but those that do (including California, New York, New Jersey, and Hawaii) can actually continue an SSI claim themselves if the SSI applicant signed an agreement to repay the state any SSI benefits received. A state can also pursue an SSI death claim to establish retroactive Medicaid eligibility so that it can bill Medicaid for past medical treatment costs that the state paid for.

SSDI Claims

Because SSDI benefits are based on taxpayer contributions rather than poverty, the 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 the SSA pays beneficiaries, though, the SSA will honor legitimate liens on the deceased worker's Social Security 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 applicant's death—then 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 Social Security 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 Social Security 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 Social Security 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; that is, adult children (in equal shares). If there are none, then:
6. To parents not qualified under C. above. If there are none, then:
7. To the legal representative of the deceased person's estate.

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.

Even someone further down the line on the list of beneficiaries, who would receive no benefits, such as the applicant's mother or estate executor, can continue the claim. Why would someone who can't collect the underpayment pursue an SSDI death claim?

• He or 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, or
• He or 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 has the following amount of time to file an application for the deceased worker:

• Within three months after the month of the worker's death, or
• If, before death, there was a written statement sent to the SSA stating that the worker intended to file for disability benefits, this gives beneficiaries a protective filing date and up to six months to apply for benefits -- or longer if the SSA doesn't issue a notice stating when the protective filing period ends.

But if either or both of the following conditions apply, the SSA can refuse to take the SSDI application after the worker's death:

• If the applicant hadn't been disabled for more than five months before death. The SSA never pays SSDI benefits for the first five full months after a person is found "disabled." That's called the "SSDI waiting period."
• If the person was performing gainful work before death, even though he or she was terminally ill, the SSA won't find that person disabled.

Continuing an SSDI Application or Appeal After an Applicant's Death

Does the 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. The 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, the SSA doesn't have to contact even obvious beneficiaries.

If you aren't notified, you may find out about the claim if you receive the applicant's mail. When a pending case is at the application or reconsideration levels, the SSA will continue to work on the claim until a decision is made and will send notices to the applicant's last known address. If the applicant dies while his or 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.

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

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

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

Find Additional Benefits

An experienced representative can also look into other benefits and claims that the 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 may need help proving their case.

Widows/Widower Benefits

Is there a spouse over 50 who is disabled or will reach that age within seven years of the deceased client's death, he or she may be eligible for Social Security benefits. A disability attorney can help with a disabled widows or widower benefit claim.

Medicare

Eligibility for Medicare is triggered by an SSDI disability award after 24 months of payments. When a last illness has been costly and there are attachable assets in an estate, this can actually help the deceased applicant's heirs more than the payment of disability benefits. If the applicant wasn't disabled for long, Medicare benefits won't be available (unless the applicant had one of three medical conditions that expedite Medicare), but if the deceased applicant had a prior claim for disability benefits that was not appealed before the last one was started, a lawyer may be able to help get that claim reopened, accessing Medicare and a larger underpayment for the beneficiaries.

Most lawyers 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.

Finding a Disability Lawyer

To find a local disability lawyer, visit our disability lawyers page.