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Dr. Fiona Chen
Dr. Fiona Chen, Certified Public Accountant (CPA)
Category: Social Security
Satisfied Customers: 482
Experience:  Former IRS Revenue Agent
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My wife is 61, disabled for 16 years and receiving SSDI; I

Customer Question

My wife is 61, disabled for 16 years and receiving SSDI; I am 68 and just retired but not drawing on my record as I want to wait until age 70. Am I entitled to receive and amount equal to half of my wife's SSDI? What is the cite section of the code for my SS office? Thanks, ********@******.***
JA: The Retirement Accountant will know how to help. Is there anything else the Retirement Accountant should be aware of?
Customer: My SS office first said yes I am entitled for 12 months retroactive but now after waiting 6 week for 2nd call the new said I did not want SSI which is not correct. My wanting SSI is the reason I had to wait 6 weeks for my 2nd call from SS.
Submitted: 8 months ago.
Category: Social Security
Expert:  Dr. Fiona Chen replied 8 months ago.

Hello! My name is***** to JustAnswer. I'm reviewing your question now, and will post back with your reply momentarily.

Expert:  Dr. Fiona Chen replied 8 months ago.

Dear Customer,

There has been some confusion on whether one can take spousal benefit when waiting for his/her own to suspend after the full retirement age. The reason is that the new SSA law has terminated such provision. But supposedly, it is for retiree who turned 66 in the year of 2016. If you voluntarily suspended benefits prior to April 30, 2016, you may remain in voluntary suspense status, and the new law will not affect you.

However, in the SSA and even in the professional circles, arguments on who will be affected still exist.

Therefore, it is suggested that you go to an SSA regional office to patiently discuss the matter with them and do not just use or wait for the phone calls. Also, because you have lump sum coming in potentially, you may want to consult with an attorney specializing in the area, even consulting several of them, and may be retain one to represent you if your effort directly with the SSA is unsuccessful. If they get 1/3 of your lump sum, you still have the future payment and the 2/3 left. If you can pay them to represent you by the hour, if may also worthwhile.

In sum, consult several attorneys and get more definite answers. Go in to a regional SSA office and be very patient with them. The quotations and website links below are for your further references.

Please feel free to follow up.

Regards,

Fiona

Fiona Chen, MPA, Ph.D., CPA, ABV, CFF, CITP

The Bipartisan Budget Act of 2015 (Public Law 114-74; November 2, 2015), made some changes to Social Security’s laws about claiming retirement and spousal benefits. Section 831 of the law (entitled “Closure of Unintended Loopholes”) made several changes to the Social Security Act and closed two complex loopholes that were used primarily by married couples. This fact sheet explains what is changing and how it might affect you.

Go the this following website to read the whole text. The change is significant. But it should not apply in your situation because you over over age 66 and your suspension was before April 2016. Now, you are just applying for the spousal benefit.

https://www.ssa.gov/planners/retire/claiming.html

https://www.ssa.gov/pubs/EN-05-10029.pdf

These quotations below just describe the normal procedure.

If a husband or wife has been married for at least a year to someone who receives Social Security disability benefits, the spouse can get Social Security benefits if the spouse is 62 years old or older. Note that eligibility for the spousal disability benefit will end if he or she becomes eligible to receive significantly higher Social Security benefits on his or her own record.

If your husband or wife’s disability claim has already been approved, call the Social Security Administration (SSA) at(###) ###-####to apply for the spouse’s SSDI benefit. You must provide the SSA with your birth certificate, your marriage certificate, your Social Security number (and that of the disabled worker), and your bank’s routing information for direct deposit.

Customer: replied 8 months ago.
I have never filed for SS and I have never suspended anything as I am waiting until age 70 to get my maximum benefit. So I am not doing a file and suspend. I just want the right to claim my spousal benefit, this may be somewhat uncommon but the the gender of the claimants should not affect the application of the law. Chuck
Expert:  Dr. Fiona Chen replied 8 months ago.

Dear Customer,

It is not the gender that matters.

For you not to have suspended is normal because many people are in the similar situation. The act of not taking out means continued growth. However, because you did not have to do the two steps, and because you did not apply for the spousal benefit, the interpretation of this new law becomes an issue.

The new law should not affect you because your age is over 66 in 2016.

However, I am thinking the SSA, whoever processing your application, may think the issue as two parts.

1) The law does/should not affect you, but

2) You are applying for the spousal benefit after April 2016. Then, the law in that person's mind, should apply to you.

That probably is why you have obtained two different, inconsistent decisions. The first person and the second person are interpreting the law differently. The law did not change after it comes into effect in the end of last year. But there has been many, many application questions and disputes.

Even the SSA website cited in the last posting has been updated and kept on changing in this year to help the public.

Please feel free to follow up.

Regards,

Fiona

Customer: replied 8 months ago.
I am very calm about this and will go the my SS office tomorrow and calmly visit with them directly. So I may need to follow up at that time which I assume would be acceptable without any extra charge. Chuck
Expert:  Dr. Fiona Chen replied 8 months ago.

Dear Customer,

Sure.

Print out or at least read through that link.

https://www.ssa.gov/planners/retire/claiming.html

Some attorneys go to their office early before the court. If you can get some telephone numbers today, give them a call early in the morning. Because this is a hot topic, they may be able to get you some pointers right then and there even before your SSA office visit.

Regards,

Fiona

Customer: replied 8 months ago.
The first gal I talked with seemed very knowledgeable and experienced and said the claim would be retroactive 6 month from their initial contact. The second gal was quite your and casually nice but the letter she finally send had two errors.as her letter was one day off our marriage date both my wife and I told her and the other was it says I did not want to file for SSI which is absolutly untrue and make not sense as that was the total reason for my call. Chuck PS I am a retired local divorce attorney after 38+ years of working as a solo.
Customer: replied 8 months ago.
The second gal said my claim would be retroactive 12 months, which may be correct.
Expert:  Dr. Fiona Chen replied 8 months ago.

Dear Customer,

It is encouraging to hear that you are an attorney. Also, with your practice, you can handle most controversial situation possible.

I was thinking you may want to retain an attorney to go with you in the meeting. But now, maybe you can go with yourself. It is still good to take time to consult with some one practicing in the area.

With your ability, you can read the original law and the new law, and study more. I read it several times -- I hate to admit that I would not have done better than you can.

I want to show you this quotation. This is the only place in the SSA websites which shows that one can take the spousal benefit when waiting for his/her own. This page is for divorced spousal benefit. No where else, it makes such a distinction for applicant who reaches full retirement age prior to Jan. 2, 1954. I think this will help your research and argument.

"Note: If you were born before January 2, 1954 and have already reached full retirement age, you can choose to receive only the divorced spouse’s benefit and delay receiving your retirement benefit until a later date. If your birthday is ***** 2, 1954 or later, the option to take only one benefit at full retirement age no longer exists. If you file for one benefit, you will be effectively filing for all retirement or spousal benefits."

https://www.ssa.gov/planners/retire/divspouse.html

If it can go retroactive, maybe it should or can go back to your age of full retirement age. This is a second aspect of the issue.

I have searched and read several different advises in terms of the age of the applicant. -- for the second loophole. I came to the conclusion that it is only applicable to applicants who reaches age 62 this year and age 66 this year.

Please feel free to follow up. No hurry on your schedule. It does not have to be tomorrow. We are here.

Regards,

Fiona

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