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Social Security Disability and Substitution of Party

By June 18, 2020December 20th, 20233 min read

The process to apply for and eventually receive disability benefits through Social Security can be lengthy. Unfortunately, some claimants do not live long enough to make it to their disability hearings with an Administrative Law Judge (ALJ). Although it is small consolation, the claimant’s death does not necessarily mean the end of the claim.

If a claimant dies while waiting for an ALJ to render a decision, an eligible individual may substitute for the deceased and continue the claim. This process is called substitution of party, and, depending on the circumstances, can be made by the following individuals in this order of eligibility: 1) surviving spouse; 2) surviving children; 3) surviving parents; or 4) legal representative of the deceased’s estate.

Please note that the above is the order of eligibility for continuation of Social Security Disability Insurance (SSDI) claims. For continuation of Supplemental Security Income (SSI) claims, the criteria for who is an eligible individual is a bit stricter. In these cases, the surviving spouse must have been living with the claimant within the six months immediately preceding the claimant’s month of death. Additionally, the surviving parents of a deceased child must have been living with that child within six months of the child’s death.

If you are an eligible individual, the first thing to do is notify the Social Security Administration (SSA) that the claimant has died. Then, complete form HA-539 “Notice Regarding Substitution of Party Upon Death of Claimant” to let SSA know that you want to pursue the deceased’s claim and mail the completed form to the hearing office where the deceased’s claim is located along with a copy of the deceased’s death certificate.

In continuations of both SSDI and SSI claims, the substituted party can either attend a hearing or request that an ALJ make a decision on the record. If the substituted part attends a hearing, the ALJ will ask him/her what he/she observed about the claimant from the alleged onset date of disability to the date of death. If the substituted party asks for a decision on the record, the ALJ’s decision will be based solely on submitted medical evidence without any additional testimony.

If the deceased is ultimately awarded benefits, the substituted party will not receive ongoing monthly benefits like the deceased would have if he/she survived. Instead, the substituted party will only receive past benefits. However, the substituted party may be entitled to separate survivor’s benefits based on the deceased’s work record.