Disability and Family Relationships: Marriage Penalties and Support Anomalies
| Publication year | 2010 |
Georgia State University Law Review
3-1-2006
Disability and Family Relationships: Marriage Penalties and Support Anomalies
Robert E. Rains
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Recommended Citation
Rains, Robert E. (2005) "Disability and Family Relationships: Marriage Penalties and Support Anomalies," Georgia State University Law Review: Vol. 22: Iss. 3, Article 6.
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DISABILITY AND FAMILY RELATIONSHIPS: MARRIAGE PENALTIES AND SUPPORT ANOMALIES
Robert E. Rains*
Introduction: Unintended Consequences
My duties at the Penn State University Dickinson School of Law include supervising students in our Disability Law Clinic as well as our Family Law Clinic. Several years ago, a woman came to the Disability Law Clinic for legal help. She was a widow with a severely mentally disabled daughter. The daughter was receiving cash assistance from the federal government in the form of Supplemental Security Income (SSI).1 At that time, the maximum individual benefit rate was probably about $480. The problem was that, before he died, the child's father had gone to his family lawyer because he naturally wanted to take care of his daughter with special needs. The lawyer set up, and the father signed, a testamentary support trust to pay his daughter $240 per month.
What was the result? SSI is a needs-based program with strict income and resources rules. Any unearned income over $20 per month results in a dollar-for-dollar reduction of SSL2 Every month the trust paid the mentally disabled child $240. Every month the Social Security Administration reduced her SSI by $220. In effect, every month the trust paid $20 to the girl and $220 to the Social Security Administration. The girl's federal benefits were effectively cut almost in half.
What was to be done? Nothing; the trust was irrevocable.
* Professor of Law, Director of Disability Law Clinic, Co-Director of Family Law Clinic, the Pennsylvania State University Dickinson School of Law. The author wishes to thank Nancy G. Shor, Ethel Zelenske, and Barbara Silverstone, all of the National Organization of Social Security Claimants' Representatives, for their assistance in providing information and insights in the preparation of this article. Parts of this article were presented at the 12th World Conference of the International Society of Family Law in Salt Lake City in July 2005.
1. See 42 U.S.C. § 1382c(a)(3)(C) (2005).
2. 20 C.F.R. § 416.1124(c)(12) (2005).
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Was this result what the father intended? Obviously not. Did the lawyer, no doubt a competent general practitioner, commit malpractice? What is the public policy behind such a harsh result, and is it sound?
This article will look at how federal law and family law treat disability and disabled people in the specific contexts of marriage and child support and will raise questions about the explicit and implicit public policies underlying that treatment.
I. Special Marriage Penalties Unique to Disabled People
Marriage penalties have been much debated in recent years. The debates have focused on unmarried dual income couples facing significant federal income tax increases should they get married. Almost no one has paid attention to the severe marriage penalties often faced by persons with disabilities under the Social Security Act. Nor, unlike the situation with the Internal Revenue Code, has there been any significant political movement to ameliorate or eliminate those penalties.
A. The Disabled Adult Child
A dependent child of a wage-earner who is disabled, retired or deceased may be eligible for benefits on the wage-earner's account under Title II of the Social Security Act. For most dependent children, these benefits end upon reaching age 18 or, if still in elementary or secondary school, age 19.4 However, if the child himself is disabled or becomes disabled before age 22, the child can continue to receive such benefits indefinitely as a Disabled Adult Child (DAC).5
3. 42 U.S.C. § 402(d) (2005).
4. § 402(d)(l)(B)(i).
5. § 402(d)(l)(B)(ii). Recently, The Social Security Administration has taken to referring to these benefits as "Childhood Disability Benefits" (CDB). Since the SSA pays these benefits during adulthood, although based on one's becoming disabled in childhood (before age 22), I shall avoid use of the particularly confusing phrase, "Childhood Disability Benefits."
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John A. Jobst was a DAC. He applied for benefits on his father's earnings record in 1956.6 The Social Security Administration (SSA) awarded John benefits commencing January 1957 based on his cerebral palsy.7 In October 1970, John married Sandra Lee, who also had cerebral palsy, but was not receiving Social Security benefits.8 As a result, the SSA terminated John Jobst's DAC benefits.9 A DAC beneficiary loses his benefits permanently if he marries someone who is not also receiving Social Security, even if the spouse is totally and permanently disabled.10
Jobst appealed the termination of his benefits through the SSA's administrative processes and the federal court.11 He argued that the statute, as applied to a recipient who marries a totally disabled person, violates the equal protection component of the Due Process Clause of the Fifth Amendment to the United States Constitution.12 District Court Judge John W. Oliver agreed.13 He found no rational basis for the distinction between beneficiaries who marry disabled persons who receive Social Security benefits and beneficiaries who marry disabled persons who do not receive such benefits.14
Of course, the Supreme Court unanimously reversed the decision.15 In an opinion written by Justice Stevens, the Court noted that when Congress established the DAC program in 1956, marriage to anyone terminated DAC benefits.16 Two years later, in 1958, Congress created the exception allowing a DAC recipient to marry another Social Security beneficiary without losing benefits.17 Thus, it was
6. Jobst v. Richardson, 368 F. Supp 909,910 (W.D. Mo. 1974).
7. Id.
8. Id.
9. Id.
10. 42 U.S.C. §§ 402(d)(1)(D), (d)(5) (2005). If the marriage is subsequently annulled, rather than ending in divorce or death of the spouse, the DAC recipient may have benefits reinstated. Social Security Administration Policy Site: POMS § PR 07105.039, https://s044a90.ssa.gov/appsl0/poms.nsf71nx/15017050397opendocument.
11. 7ofej/,368F.Suppat910-ll.
12. Id. at 910.
13. Id. at 911.
14. Id. at 913.
15. Califano v. Jobst, 434 U.S. 47 (1977).
16. Id. at 51.
17. Id.
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really an expansion of benefits and partial amelioration of the marriage penalty that Jobst was challenging.18 The Court found a rational basis for the distinction created by the 1958 amendment:
Both tradition and common experience support the conclusion that marriage is an event which normally marks an important change in economic status. Traditionally, the event not only creates a new family with attendant new responsibilities, but also modifies the pre-existing relationships between the bride and groom and their respective families. Frequently, of course, financial independence and marriage do not go hand in hand. Nevertheless, there can be no question about the validity of the assumption that a married person is less likely to be dependent on his parents for support than one who is unmarried.19
The Court reasoned that the exception to the marriage penalty created by the 1958 amendment is simple to administer, as it requires
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no individual inquiry into degrees of hardship or need. While recognizing the unusual hardship that the general rule had inflicted upon Jobst and that it might have been wiser for Congress to take a larger step, the Court opined "the step Congress did take was in the right direction and had no adverse impact upon the Jobsts."21
Today, almost three decades later, Congress has yet to take even the small extra step of eliminating the permanent loss of DAC benefits for DAC recipients who marry totally disabled persons who do not receive Social Security benefits.
What public policy is served by this restriction? Had John Jobst simply cohabited with his disabled significant other, his DAC
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benefits would have been unaffected. It was the act of marriage that caused their termination.23
18. See id.
19. Id. at 53.
20. Id. at 57.
21. Id. at 57-58.
22. W.at51.
23. Id.
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One may posit various reasons why Congress has failed to act. Inertia is one of them. At the political level, there are no organized and funded groups seeking repeal of this particular marriage penalty. Moreover, as the Court noted, Congress ameliorated to some extent the harshness of this marriage penalty by the establishment of the SSI program for indigent, disabled persons, which went into effect in 1974 and provided cash benefits to both Mr. and Mrs. Jobst that totaled almost as much as John Jobst had previously been receiving under the DAC program.24 However, as with all categorical assistance programs, SSI has various rules and limitations which may make it unavailable to other DAC recipients who marry totally disabled nonrecipients of Social Security.25
It is difficult to believe that the administrative burden posited by the Court would be significant. In fiscal year 2004, the SSA adjudicated 2,522,826 disability claims at the initial level, 556,243 on reconsideration, 447,268 at administrative law judge hearings, and 89,487 at its Appeals Council.26 This was in addition to processing 1,677,423 continuing...
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