TN 1 (12-04)

PR 04505.016 Illinois

A. PR 05-024 Stanley S~ - Illinois Garnishment of Deceased Wage Earner's Underpaid Social Security Disability Benefits for Child Support

DATE: August 1, 2000


An underpayment due a deceased individual can be garnished for child support and/or alimony.


You asked for an opinion as to the extent that deceased wage earner Stanley S~ underpaid Social Security disability benefits are subject to garnishment for child support. For reasons stated below, we believe it is appropriate for SSA to withhold either 55% or 65% of the past due benefits, depending on whether or not Mr. S~ was supporting another dependent child. We also recommend that the POMS entry for Illinois be changed to indicate that Illinois garnishments are subject to the Federal limitation.

This case involves an underpayment of $4,592.00 owed to a deceased wage earner. Before the wage earner died, he had filed a claim to receive the underpaid benefits. Also before the wage earner died, SSA received a garnishment order against any money due the wage earner. By the time the decision was made to pay the underpayment, the wage earner had died. SSA erroneously paid the underpayment to a surviving child, without considering the garnishment order on file.

The garnishment order, dated December 26, 1996, instructs Social Security to pay to the clerk of court $13,260.00 or less as money due to Barbara S~ for past due child support. The underpayment at issue was for March through June 1997 benefits.

As you are aware, Social Security disability benefits may be garnished to enforce an individual's legal obligation to provide child support or alimony. 42 U.S.C. § 659; 5 C.F.R. § 581.101 et. seq.; 20 C.F.R. § 404.1820(b). Illinois law does not specifically limit the amount of income subject to withholding other than to provide that the amount to be withheld from an obligor's income for support and other purposes may not exceed the maximum permitted under the Federal Consumer Credit Protection Act. 750 ILCS 28/20. The Federal Consumer Credit Protection Act generally provides that the maximum part of the aggregate disposable earnings subject to garnishment in any workweek may not exceed 25% of the disposable earnings for that week, or the amount by which disposable earnings for a week exceed 30 times the Federal minimum hourly wage, whichever is less. 15 U.S.C.A. § 1673(a). If wages are being garnished pursuant to a valid order for the support of any person, however, the maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment for support shall not exceed 50% of disposable earnings for that week if the individual is supporting a spouse or child other than the spouse and/or child whose support has been ordered, or 60% if the individual is not supporting another spouse of child. 15 U.S.C.A. § 1673(b). These amounts are increased to 55% and 65% respectively if the original support ordered is 12 or more weeks in arrears. 15 U.S.C.A. § 1673(b)(2).

Read in its entirety, § 1673 of the Consumer Credit Protection Act places a ceiling of 25% on the amount of an employee's disposable earnings that is subject to garnishment, with the exception that the ceiling may be raised as high as 65% if the garnishment is to enforce family support orders. Thus, when garnishments are sought by ordinary creditors, no more than 25% of disposable earnings may be withheld for that purpose. When the garnishments are sought to enforce support orders, as much as 65% of disposable earnings may be withheld for that purpose. Long Island Trust Company v. United States Postal Service, 647 F.2d 336, 339 (2d Cir. 1981). Because Illinois law places no limit on garnishment other than those set forth in the federal Consumer Credit Protection Act, up to 65% of the wage earner's disposable earnings, including Social Security benefits, are disposable earnings subject to garnishment.

Accordingly, our interpretation of the applicable law is that the amount SSA can withhold under an order for support depends on whether the wage earner is supporting a spouse or dependent child other than the spouse or child for whom the support order was issued. Because the period for which the support was due is more than twelve weeks ago, we believe the maximum percentages allowable under the federal Consumer Credit Protection Act are applicable. In other words, if the wage earner was supporting another dependent child during the period represented by the underpayment, 55% of the underpayment can be withheld to satisfy the support order. If the wage earner was not supporting another dependent child during that period, 65% of the underpaid benefits can be garnished under the court order.

We are unable to identify any precedent for treating the lump sum underpayment any differently than if the benefits had been correctly paid the wage earner during the periods they reflected. Accordingly, the limitations on the amount subject to garnishment remains the same as discussed above, even though the wage earner is deceased. Nor have we identified precedent for treating withholding orders differently depending on whether they are to comply with orders for alimony versus child support.

We are aware that the POMS currently reflect that the maximum withholding is 25% of the disposable earnings for that week, or the amount by which disposable earnings for a week exceed 30 times the Federal minimum hourly wage, whichever is less. We believe this does not reflect the latter portion of the federal Consumer Credit Protection Act which specifically applies to orders for support. Consistent with our opinion, we believe the provisions of the POMS should be amended to reflect the Federal limit as set forth above.

Very Truly Yours,
Thomas W. C~
Regional Chief Counsel

By: ___________________________
Edward P. S~

Assistant Regional Counsel

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PR 04505.016 - Illinois - 12/16/2004
Batch run: 11/29/2012