Misty A. Watson
Co-authored by Misty A. Watson and Cliff Smith
Social Security survivor benefits can be an important component of your spouse’s financial security after your death. While the majority of U.S. citizens in the American workforce have survivor insurance protection for their spouses, noncitizens who are working in the United States are subject to different eligibility rules. Even if you are working in Social Security covered employment and your immigration status is fully legal, your spouse may not be able to receive survivor benefits after your death if these requirements are not met. Also, your surviving spouse may unknowingly forfeit survivor benefits upon leaving the United States. Read on to see if you are eligible and what your spouse will have to do to continue receiving benefits.
If You Are a Noncitizen…
The first question is whether you are currently covered by the Social Security program. In most cases, if you are working for a U.S. employer, even without authorization, the answer is yes. Among the few exceptions are people working under certain visa categories designated in § 101(a)(15) of the Immigration and Nationality Act. These categories are designated by short alphanumeric codes, and they include the following:
- H-1B temporary professional workers
- H-2A agricultural workers
- F-1 foreign students
- J-1 cultural exchange participants
Second, if you received your Social Security Number on or after January 1st, 2004, you may need federal work authorization in order to be eligible for any kind of Social Security benefits, including survivor benefits. Does not make a difference when you receive your work authorization; even if you did not have it when you began working in the U.S., you may obtain it at a later date and still be eligible for benefits. Noncitizens admitted to the U.S. under a B visa or D visa are exempt from the work authorization requirement.
Third, in order for your spouse to receive survivor benefits, you must work long enough to obtain fully insured status. Insured status is determined by the number of quarters of coverage (“QCs”) you accumulate during your working years. In 2012, workers will earn one QC for every $1,130 in wages they receive. To achieve fully insured status, you will generally need to earn one QC for every year that elapses between the year you turn 21 and the year you either turn 62, become disabled, or die, whichever comes first.
If Your Spouse is a Noncitizen…
After your death, assuming you are either a U.S. citizen or a noncitizen who has met all the above eligibility requirements, your spouse must meet Social Security’s lawful presence requirement in order to receive benefits while he or she is in the United States. It is important to know that being lawfully present for Social Security purposes is not the same as having lawful status under United States immigration law. The definition of “lawfully present” is a multi-part definition, and it includes lawful permanent residents, refugees, asylees, noncitizens paroled into the United States for less than one year, and Cuban-Haitian entrants.
In addition, if your surviving spouse ever leaves the United States, there are two rules that may limit his or her ability to receive survivor benefits. However, your spouse may be exempt from these rules if the country of origin falls into one of three categories:
- Social insurance countries. These are countries with social insurance or pensions systems that will pay benefits to U.S. citizens who reside outside that country. The United States will extend a reciprocal benefit to citizens of social insurance countries who reside outside the U.S.
- Treaty obligation countries. The United States has entered into treaties with certain countries requiring the payment of Social Security benefits to noncitizens under certain circumstances.
- Totalization agreement countries. A totalization agreement is an agreement between the United States and another country with a program similar to the American Social Security system. Totalization agreements allow greater flexibility for workers who split their careers between the two countries.
Under the first rule, unless you are a citizen of a treaty obligation country or a totalization agreement country, your spouse must have lived in the United States for five consecutive years (lawfully or unlawfully), and you must have been married during some part of that five-year period. Under the second rule, unless your spouse is a citizen of a social insurance country or a totalization agreement country, your spouse will stop receiving benefits if he or she lives outside the United States for more than six consecutive months.
Ensuring Your Spouse’s Eligibility for Survivor Benefits
It is important to fully understand your status and that of your spouse under Social Security as early as possible. If there are any problems with your eligibility, they cannot be remedied after your death, so be sure to look into the matter while you are planning your estate. In addition, the Social Security residency requirements for surviving spouses may influence your spouse’s decisions about his or her residency after your death.
Posted by Attorney Misty A. Watson and law clerk Cliff Smith. Watson’s practice focus is estate-related: planning, administration, and probate. She creates trusts, wills, financial, and health care powers of attorney, guardianships, and conservatorships. Smith is a second year law student at Saint Louis University School of Law and is on the staff of the Saint Louis University Law Journal. He graduated from Washington University in St. Louis in 2008, majoring in philosophy, neuroscience, psychology and computer science.
04/6/12 9:22 AM
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