Spouses May Qualify for Early Social Security Benefits If They Care for a Child with Disabilities

June 2, 2016

When a parent of a child with special needs retires and begins receiving Social Security retirement benefits, her child may qualify for Social Security Disability Insurance (SSDI) based on the parent’s work record if the child’s disability manifested itself before the child turned 22 years old.  But a little-known provision in the Social Security regulations allows the spouse of a retiree to also receive Social Security benefits, even if he has not yet reached retirement age, so long as he is caring for a child with disabilities at home.

Here’s an an actual example.  Father retires and begins receiving Social Security.  Because his daughter developed a disability prior to turning 22, the daughter will begin receiving SSDI benefits at this point.  Furthermore, because the 58-year-old mother is caring for the couple’s daughter at home, she may also begin receiving spousal Social Security benefits, even though she hasn’t reached the minimum retirement age.

Of course, there is a catch.  Because the combination of the mother’s and daughter’s benefits exceeded Social Security’s limit on family benefits, the result was that the daughter’s benefit was reduced. But the combined benefit still exceeded the daughter’s benefit alone by more than $500 a month. Over the four years from when the father began taking Social Security benefits until the mother reaches age 62, the family will receive more than $30,000 in extra benefits, which will make a large difference in their ability to care for their daughter.

To paraphrase the Social Security Administration’s (SSA) website, in order for a parent to receive benefits in this situation, the parent must exercise parental control and responsibility for a mentally disabled child. The benefits can also be received if the parent performs personal services for a child who is physically disabled.

In many cases, the SSA will inform the parent of this opportunity, so long as the parent is already receiving spousal benefits before the child turns 16.  But if the parent is not receiving these benefits, it is important to explain the situation to the SSA when the retiring parent applies for Social Security.

Since this area of benefits planning is very complicated, it is important to speak with your special needs planner in order to fully analyze your Social Security retirement options.  One wrong turn could result in a significant reduction in Social Security benefits.

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What Is Undue Influence?

Saying that there has been “undue influence” is often used as a reason to contest a will or estate plan, but what does it mean?

Undue influence occurs when someone exerts pressure on an individual, causing that individual to act contrary to his or her wishes and to the benefit of the influencer or the influencer’s friends. The pressure can take the form of deception, harassment, threats, or isolation. Often the influencer separates the individual from their loved ones in order to coerce. The elderly and infirm are usually more susceptible to undue influence.

To prove a loved one was subject to undue influence in drafting an estate plan, you have to show that the loved one disposed of his or her property in a way that was unexpected under the circumstances, that he or she is susceptible to undue influence (because of illness, age, frailty, or a special relationship with the influencer), and that the person who exerted the influence had the opportunity to do so. Generally, the burden of proving undue influence is on the person asserting undue influence. However, if the alleged influencer had a fiduciary relationship with your loved one, the burden may be on the influencer to prove that there was no undue influence. People who have a fiduciary relationship can include a child, a spouse, or an agent under a power of attorney. For more information on contesting a will, go here.

When drawing up a will or estate plan, it is important to avoid even the appearance of undue influence. For example, if you are planning on leaving everything to your daughter who is also your primary caregiver, your other children may argue that your daughter took advantage of her position to influence you. To avoid the appearance of undue influence, do not involve any family members who are inheriting under your will in drafting your will. Family members should not be present when you discuss the will with your attorney or when you sign it. To be totally safe, family members shouldn’t even drive or accompany you to the attorney’s office. You can also get a formal assessment of your mental capabilities done by a medical professional before you draft estate planning documents. For more information on preventing a will contest, go here.

July 14, 2016

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