Generally, you are not entitled to Social Security benefits while you are confined in a jail, prison, or certain other public institutions (e.g., certain types of halfway houses). However, the Social Security Administration (SSA) will continue to pay your benefits if the court finds you not guilty, dismisses the charges, vacates the arrest warrant, or takes similar exonerating action.
If you are already receiving Social Security benefits when you go to prison, your benefits should stop. When you initially applied for Social Security benefits, you were notified that certain changes could affect your ability to continue to get payments. You must notify Social Security that you were convicted of a crime and confined.
Benefits to Others - Although you cannot receive monthly Social Security benefit payments while you are confined, your spouse, children, and certain family members may still be paid benefits based on your work record if they are eligible, including survivors benefits in the event of your death.
Read the law: U.S. Code, Title 42 § 402
Read the regulations: U.S. Code of Federal Regulations, Title 20 § 404.468
You may be ineligible to receive benefits for any month during which you have:
- an unsatisfied warrant for a crime that is a felony;
- an unsatisfied warrant for avoiding custody or confinement after conviction for a felony crime which is a felony; or
- violated a condition of probation or parole imposed under Federal or State law.
However, the SSA may continue to pay your benefit if you establish that the offense underlying the warrant or imposition of the probation or parole (as well as the violation of probation or parole) was nonviolent and not drug–related and there were mitigating circumstances.
Release
The SSA does not provide any benefits just for ex-prisoners. Once you are released, you can receive benefits if you meet the eligibility criteria. If you wish to get your benefits reinstated, contact the SSA and provide them with a copy of your official release documents.
Halfway House - Whether you are eligible for Social Security benefits upon release to a halfway house will depend on a few factors. First, you must meet the program's eligibility requirements.
- If you meet the program requirements, but are living in a halfway house under the control of the State Department of Corrections, then SSA will not pay you benefits until you are released from the total control of the State Department of Corrections.
- If you meet the program requirements and are living outside of the prison and paying your own expenses (food, rent, clothing, utilities, medical care, etc., except for the cost of your ankle bracelet monitoring), then you can get Social Security benefits again.
When you are released from prison or jail to a halfway house, check with your local Social Security office to find out if your benefits can start again.
Overpayments
It is possible that you may forget to notify Social Security of your incarceration, and your benefits continue. This creates an overpayment. While it may seem like a good idea at first to let the payments continue, the SSA will find out and charge you with an overpayment.
Read the law: U.S. Code, Title 42 § 404
Institutions can receive financial incentives for reporting the fact that you are confined in their institution. The SSA also encourages individuals to submit anonymous reports on someone in jail who is improperly receiving Social Security benefits. (Individuals cannot receive the money incentive.)
There can be serious consequences for not reporting your incarceration to the SSA:
- If you are charged with an overpayment, SSA can seek to recover it from your future benefits.
- SSA could to sue you to recover the overpayment, but that does not happen very often.
- If you commit a long-term fraud by receiving benefits for years while incarcerated, especially if you purposely try to conceal your status as a prisoner, the case may be referred to the Office of the Inspector General and the Attorney General for fraud prosecution.
If you receive an overpayment notice:
- You may request a reconsideration if you believe you were not overpaid or the overpayment amount is incorrect.
- You can ask for a waiver if you believe that you may have been overpaid but feel that it was not your fault, and you cannot afford to pay the SSA back.
- Pay attention to dates and deadlines.
- If you ask for an appeal within 10 days from the date you receive the notice, any payments currently being made will continue until the SSA makes a determination.
- Whether you request an appeal or a wavier, in both cases, gather your evidence, review the applicable standards, and prepare your argument. Consider getting help from a legal professional.