You requested a legal opinion as to whether a local government agency may garnish
a surviving child’s share of a Title II underpayment due a deceased worker, for purposes
of collecting child support owed by the surviving child. For the reasons discussed
below, we conclude that any payment under Title II, including a non-entitled claimant’s
portion of an underpayment due a deceased worker, is garnishable under the Social
Security Act. Based on the specific facts of this case, we recommend that SSA give
the local government agency an opportunity to resubmit proper legal process before
releasing the underpayment to the surviving child.
Thomas F~, the number holder (NH), filed a claim for Title II benefits. The NH was
awarded benefits, but died before payment could be made, resulting in an underpayment
of approximately $30,000. The NH was survived by two children, Foster and Nathaniel.
Foster filed a claim for payment of the NH’s underpayment, but not Nathaniel. Apparently,
the siblings agreed that Foster would collect the entire underpayment and then distribute
The Wright County Human Services Agency (WCHSA) has informed SSA that Nathaniel owes
child support. Therefore, the WCHSA claims that it has a legal interest in Nathaniel’s
share of the NH’s underpayment. To that end, the WCHSA has submitted an affidavit
notarized on October 4, 2010, signed by Kimberly W~, a Child Support Officer. According
to the affidavit, Nathaniel has been court-ordered to pay child support pursuant to
orders dated August 9, 2001, and December 20, 2006; as of August 8, 2001, Nathaniel
owed arrearages of $48,883.93.
Under the Social Security Act, regulations, and agency policy, when a Title II underpayment
is due a deceased worker, there is an order of priority to whom such payment is made.
See Section 204(d) of the Act; 20 C.F.R. § 404.503; POMS GN 02301.030. The order of priority includes children of the deceased worker. Specifically, the
statute provides that, when no individual is entitled to benefits on the deceased
worker’s account at the time of his death, and there is no surviving spouse, an underpayment
is paid “to the person or persons, if any, determined by the Commissioner of Social
Security to be the child or children of the deceased individual (and, in case there
is more than one such child, in equal parts to each such child).” Section 204(d)(5)
of the Act; see also 20 C.F.R. § 404.503(b)(5); POMS GN 02301.030(A). Here, since Nathaniel is one of two surviving children of the NH, he is due one
half of the NH’s underpayment.
As indicated above, Nathaniel owes child support. The submitted materials include
an affidavit by a child support officer of the WCHSA stating that Nathaniel owes over
$48,000 in child support arrearages as of August 8, 2001. Thus, the issue is whether
an underpayment due a deceased worker may be garnished to collect support owed by
one of the surviving individuals due the underpayment.
Under Section 459 of the Act, Social Security Title II benefits are subject to legal
process for the enforcement of an individual’s legal obligation to provide child support
or alimony. See also 5 C.F.R. § 581.103(c)(1); 20 C.F.R. § 404.1820(b); POMS GN 02410.200A. Section 459(a) states in relevant part:
[M]oneys (the entitlement to which is based upon remuneration for employment) due
from, or payable by, the United States… to any individual…shall be subject…to withholding
in accordance with State law enacted pursuant to [Section 466 of the Act requiring
each State to enact laws requiring specific procedures to improve the effectiveness
of child support enforcement]…and to any other legal process brought, by a State agency
…to enforce the legal obligation of the individual to provide child support or alimony.
The language in the statute and regulations makes clear that all payments under Title
II, not just periodic benefits due the worker, fall within the scope of this garnishment
requirement. Under Section 459(h), which addresses “[m]oneys subject to process,”
the term “moneys payable to an individual which are considered to be based upon remuneration
for employment” includes “periodic benefits…or other payments…under the insurance system established by [Title II].” See Section 459(h)(1)(A)(ii)(I) (emphasis added). In addition, 5 C.F.R. § 581.103(c)(1)
states that the following are subject to garnishment: “[p]eriodic benefits…to include
a benefit payable in a lump sum if it is a commutation of, or a substitute for, periodic
payments; or other payments…under the programs established by [Title II]” (emphasis added). This section also
specifies that “[d]ependents’ or survivors’ benefits” are garnishable, 5 C.F.R. §
581.103(c)(1)(v), which, like the underpayment at issue here, are not strictly based
on remuneration for employment but on familial relationship. Moreover, in the regulatory
section which addresses “[m]oneys which are not subject to garnishment,” the only
Social Security benefit listed is SSI. See 5 C.F.R. § 581.104(j). In short, the broad language in both the statute and the regulations
appears intended to capture all payments under Title II. Thus, we believe that the
payment due Nathaniel as his share of the deceased NH’s underpayment is, in fact,
garnishable for the child support that he owes.
Under the garnishment statute, SSA is required to comply with any notice of withholding
“or any other order or process” to enforce an individual’s support obligations. See Section 459(b) of the Act. “Legal process” is defined as “any writ, order, summons,
notice to withhold income pursuant to [Section 466 of the Act], or other similar process
in the nature of garnishment” which is issued by (1) a court of competent jurisdiction
(domestic or foreign), (2) an authorized official pursuant to a court order or pursuant
to State or local law, or (3) a State agency authorized to issue income withholding
notices pursuant to State or local law or pursuant to Section 466(b) of the Act; and
is directed to a governmental entity to compel it to make a payment, from moneys otherwise
payable to an individual, to another party in order to satisfy the individual’s legal
obligation to provide child support or alimony. See Section 459(i)(5) of the Act; 5 C.F.R. § 581.102(f); POMS GN 02410.200B. In addition, the legal process must, on its face, conform to the laws of the issuing
jurisdiction. See 5 C.F.R. § 581.305(a)(1); POMS GN 02410.210(A)(3)(b).
Here, the Affidavit of Lump Sum Payment signed by Kimberly W~, a Child Support Officer
with the WCHSA, does not appear to satisfy all of the requirements for “legal process,”
as defined above. The affidavit may be considered other similar process in the nature
of garnishment. Also, under Minnesota state law, the WCHSA is considered a “public
authority” and, as such, is a state agency authorized to issue income withholding
notices. See Minn. Stat. §§ 518A.26 subd. 18, 518A.53 subd. 2; see also http://www.co.wright.mn.us/department/humanservices/ (last visited Dec. 8, 2010) (WCHSA is a department of the local county government;
it is responsible for child support enforcement); http://www.dhs.state.mn.us/main/
idcplg?IdcService=GET_DYNAMIC_CONVERSION&RevisionSelectionMethod=LatestReleased&dDocName=id_000160 (updated Sept. 16, 2010) (county child support offices administer the state’s
child support program). However, the affidavit does not appear to be directed to a
governmental entity, namely SSA, to make a payment otherwise payable to Nathaniel
to another party (presumably the Minnesota Child Support Payment Center to satisfy Nathaniel’s child support obligation. See Section 459(i)(5)(B) of the Act; 5 C.F.R. § 581.102(f)(2). Although the legal process
need not name SSA expressly as a garnishee, it must still be directed to a governmental
entity. See 5 C.F.R. § 581.202(a). But in this case, the affidavit essentially quotes subd. 11
of former Minn. Stat. § 518.6111 (renumbered § 518A.53 in 2006) and merely provides
some details of Nathaniel’s child support arrearages.
Moreover, there is a question as to whether the affidavit conforms to Minnesota law.
Under the Minnesota garnishment statute, when a public authority seeks to garnish
a lump-sum payment of $500 or more in pay or benefits due to an obligor, it must serve
a sworn affidavit from the public authority or a court order which includes the following
information: “(i) that a [child support] judgment. . .exists against the obligor,
or that other support arrearages exist; (ii) the current balance of the judgment or
arrearage; and (iii) that a portion of the judgment or arrearage remains unpaid.”
Minn. Stat. § 518A.53 subd. 11(2). Here, the affidavit does not state that a portion
of the judgment or arrearage remains unpaid. Also, the affidavit, which was notarized
on October 4, 2010, provides the balance of the judgment or arrearage only as of August
8, 2001. We suspect that there may be a typographical error in this date, especially
since it predates both child support orders mentioned in the affidavit.
In conclusion, based on our review, we believe that garnishment of the deceased NH’s
underpayment due to Nathaniel may be proper in this case. However, in light of the
potential typographical error in and other problems with the affidavit submitted by
the WCHSA, we recommend that you take the following action:
• Contact the WCHSA and request that, within 30 days, it submit legal process (preferably
a court order) which is directed to SSA, gives the current balance of the judgment
or arrearage in Nathaniel’s child support case(s), and states that a portion of the
judgment or arrearage remains unpaid.
• Withhold the underpayment for 30 days. If you do not receive the requested legal
process within 30 days, cease withholding and pay the withheld underpayment to Nathaniel.
For the reasons discussed above, we conclude that Nathaniel’s share of the deceased
NH’s underpayment is subject to garnishment for enforcement of Nathaniel’s child support
obligation. We recommend that SSA give the WCHSA an opportunity to resubmit proper
legal process before releasing the underpayment to Nathaniel.
Donna L. C~
Regional Chief Counsel, Region V
Assistant Regional Counsel