DAC benefits available is this situation

mtmike · Joined: 26 May 2005 Posts: 68

Are DAC benefits availabel in this situation: claimant arguably has been disabled since before age 22 due to Type I diabetes and bipolar disorder. Claimant married at age 22 yrs 8 mos. to an individual who at the time of the marriage was not disabled. Claimant's spouse becomes disabled in October 2008, about 3 years after the couple married. Claimant has no work record to speak of, spouse's SSD makes her ineligible for SSI but claiamant's dad is on SSD.

MikeWalters · Joined: 13 May 2004 Posts: 1388 Location: Cincinnati OH

This is an issue that should be covered square in POMS and I'm not having any luck finding it. Here's what I do know. The Act (42 USC 402(d)(1)(B) requires that a child be "unmarried" at the time of the application. 42 USC 402(d)(5) provides that a marriage to another beneficiary will not terminate childhood disability benefits.

Analyzing it with my head, it's hard to say that meeting the exception in 402(d)(5) constitutes "unmarried" for purposes of 402(d)(1). My gut reaction however is that the distinction (between termination vs. initial entitlement) would be irrational. Of course, "irrational" and federal law are not mutually exclusive.

From memory, I think there are several decade old rulings related to the issue, but I did not have time to find them. I don't know the answer but hopefully you can do the research based on the citations to the Act.

Guest · Posted: Thu Aug 26, 2010 01:59 am Post subject:

Unfortunately, the good ship Reality apparently wasn't spending much time floating in the pond of the author of 42 USC 402(d)(1)(B), as it were, because there is in fact a distinction between initial entitlement and post entitlement cases involving CDB and marriage.

The issue is clearly laid out within the entitlement requirements for a CDB. The following POMS (which contain the basic requirements of 42 USC 402(d)(1)(B)) demonstrate this requirement:

https://secure.ssa.gov/apps10/poms.nsf/lnx/0410115001

In short, initial entitlement requires that the CDB beneficiary be unmarried at time of filing, and unmarried in this situation means exactly what it says with no caveats -- the concept of a protected marriage simply does not exist in any way related to initial CDB entitlement. Once the child is actually entitled as a CDB, he/she can of course marry certain classes of Social Security beneficiaries (i.e. enter a "protected" marriage) without terminating his/her CDB entitlement. However, it is also a requirement that the person the CDB is marrying must be a beneficiary of an acceptable T2 benefit literally on the day of the marriage - a subsequent entitlement by the spouse after the date of marriage simply doesn't cut it.

If the claimant previously filed for SSI, you might be able to find an open Title II application(if the T2 aspects of a prior SSI claim were never closed out) to get the filing date back prior to the date of claimant's marriage. However, it would only potentially get her a closed period that ends at 22 years and 8 months because she married a non-beneficiary on that date.

If no open application exists, she might be better off not even pursuing any type of CDB application at this point to protect her right to file in the future. Just make sure she knows that if she ever gets divorced that she needs to immediately contact SSA and file for CDB benefits at that time. So long as she is unmarried as of the day of filing, her prior marriage would not be an impediment to filing a claim at that point.

She could, of course, obviously divorce her spouse and then file for CDB and remarry once she is entitled. However, there is no guarantee she would be approved and that is a lot of trouble to go through for a "maybe" unless the benefits are potentially substantial. If she decides to do this, she also needs to vet any potential open T2 applications based upon a prior SSI filing that could limit her eligibility to a closed period and thus limit any financial gain she would hope to derive by such an action.