Washington, DC - Ask Rusty – Overpayment Notice due to Ex-spouse Benefits
Dear Rusty: My husband got an overpayment notice from Social Security telling us that his former wife had collected $32,640.34 in benefits she wasn’t entitled to and they want us to repay the overpayment. We knew that his ex-wife had been married another 3 times, but she was single at 62 when she filed for ex-spouse benefits from my husband.
When her current husband went to retire, he asked if he could collect benefits from his wife who had just died; Social Security told him “no” as she was collecting benefits from an ex-husband. He asked, “which husband?”, which triggered the overpayment letter to us. If Social Security had an “adverse letter” system like they do for children, we could have answered the letter by stating that she had been married three times. Social Security should have run her SS number and saw how many times she changed her name on the card. End of story. $32,640.34 is hard to swallow when you are 80 and 85 and we now must repay this amount. ~ Upset and Angry
Dear Upset: Social Security’s rules say that you must be unmarried when you apply for ex-spouse benefits, not that you cannot have remarried and subsequently again divorced, been widowed or had the later marriage annulled. If an ex-spouse collecting benefits from a former husband remarries, they are obligated to inform Social Security that they are no longer eligible to collect ex-spouse benefits because they have remarried. It sounds as if your husband’s ex-wife neglected to inform Social Security of her several remarriages, each of which made her ineligible to collect from your husband while she was married to another. I suggest that you appeal this Social Security ruling on the basis that the former wife negligently continued to collect ex-spouse benefits from your husband after she had remarried. This was clearly something that your husband had no control over since his Social Security benefit wasn’t affected in any way by his ex-wife collecting benefits on his record. Although there are time limits specified to contest an adverse ruling, you are hopefully within the “3 years, 3 months and 15 days after the year the adjustment relates.” Your right to re-appeal continues even if you have been initially and subsequently denied, even taking your appeal to an Administrative Law Judge if need be. Considering the amount of money involved here, and the clarity of the ex-wife’s neglecting to inform Social Security of her remarriage(s), I encourage you to immediately appeal Social Security’s ruling.
So that you know, there is precedent within Social Security for situations where benefits were overpaid to one person without the knowledge of or benefit to another – for example, your husband’s ex-wife collecting benefits she wasn’t entitled to because she was remarried. This precedent information can be found at the following Social Security link, which deals with a ruling that is “against equity and good conscience”: https://www.ssa.gov/OP_Home/cfr20/404/404-0509.htm. For your convenience, here is what the Federal Code says about this (please print this and take it with you when you meet with Social Security): “Recovery of an overpayment is against equity and good conscience……if an individual…was living in a separate household from the overpaid person at the time of the overpayment and did not receive the overpayment”. I believe your husband’s situation regarding his ex-wife getting benefits she wasn’t entitled to, and that he had no knowledge of, clearly qualifies as “against equity and good conscience.” Please make an appointment at your local Social Security office as soon as possible and file an appeal on this ruling, and don’t simply accept it if they initially reject your appeal. Your right to appeal continues up to and including consideration by an independent Administrative Law Judge and I encourage you to use the appeal process to its fullest.