Last Update: 9/28/05 (Transmittal I-2-67)
If a claimant dies before the ALJ holds a hearing, and the record indicates that there is another party or person who may be adversely affected by the determination to be reviewed at the hearing (e.g., in a title II case, if the claimant dies before SSA has paid all benefits due or before the claimant endorses the check for the correct payment, SSA may pay the amount due to the deceased claimant's surviving eligible spouse or to his or her surviving spouse who was living with the underpaid claimant within the meaning of § 202(i) of the Act (see 20 CFR § 404.347) in the month he or she died or within 6 months immediately preceding the month of death, or if the deceased underpaid claimant was a disabled or blind child when the underpayment occurred, SSA may pay the amount due to the natural or adoptive parent(s) of the underpaid claimant who lived with the underpaid claimant in the month he or she died or within 6 months immediately preceding the month of death), ascertain that individual's intentions by:
contacting the individual directly, if the record shows the individual's name and address; or
requesting the servicing field office (FO) to determine the individual's name and address, and obtain a statement of the individual's intentions. Use Form HA-539, Notice Regarding Substitution of Party Upon Death of Claimant, as appropriate. To access Form HA-539, access DGS, scroll to “Notice” then click on “Notice of Substitution of Party on the Death of Claimant.”
FOs are instructed to notify the servicing hearing office (HO) when they become aware that a party awaiting a hearing has died. The FO's notification should indicate whether a survivor's claim has been or will be filed, the name and address of the survivor(s), or if no survivor's claim has been filed and none is being developed, the name and address of the nearest known relative.
If there is another claimant or person who may be adversely affected by the ALJ's decision, and that individual wishes to proceed with the hearing, and there is no other reason to dismiss the request for hearing (RH), the ALJ must hold a hearing and issue a decision. (See I-2-8 ff, Administrative Law Judge Decisions.)
If there is no other claimant or person who may be adversely affected by the determination to be reviewed at the hearing, or if that individual has stated in writing that he or she does not wish to proceed with the hearing, the ALJ may dismiss the RH. (See I-2-4-35, Dismissal Due to Death of a Claimant.) The ALJ may also dismiss the RH if any of the other conditions for dismissal are met. (See I-2-4-5, Dismissing a Request for Hearing.)
If the claimant dies after the hearing is held, the ALJ will proceed with the actions necessary to complete the record and issue a decision. (See I-2-8-37, Decision When Claimant Dies.)
If the primary issue being appealed is revision of the wage earner's earnings record, and a survivor establishes potential entitlement based on that earnings record, make the survivor a substitute party upon request. It is not necessary for the survivor to establish that he or she would be adversely affected by the ALJ's decision.
A survivor may choose not to pursue the appeal rights of the deceased as a “substitute party.” However, the survivor may later decide, after receiving an initial and reconsidered determination on his or her claim, to request a hearing in his or her own right. Under these circumstances, the issues appealed by the deceased may still be the subject of the hearing.