Ask Liz Weston

Get smart with your money

Q&A

Q&A: Pensions and the windfall elimination provision

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Dear Liz: As a faculty member who was only recently allowed to participate in our state’s public employees’ retirement system, I will have a very small pension. I’m told that Social Security will then reduce my benefit by up to 50% as a result of the so-called windfall elimination provision. Can you tell me how this is legal?

Answer: Many people affected by Social Security’s windfall elimination provision are outraged that their benefits will be reduced. Before the provision was enacted in 1983, though, people who paid less into the Social Security system wound up getting an outsized benefit.

Here’s why. Social Security is designed to replace more of a worker’s income the less he or she makes, with the understanding that saving for retirement is harder the lower your income.

When you get a pension from an employer who doesn’t pay into the Social Security system, but you also qualify for Social Security benefits from other jobs, your Social Security earnings record can look as if you were a long-term, low-wage worker even when you’re not. Without the windfall elimination provision, you could wind up with a Social Security check that replaces more of your income than you would have received had you only worked in jobs covered by Social Security.

How much your benefit will be reduced depends in part on how many years you worked in those other jobs — the ones that were covered by Social Security. The longer you worked at jobs covered by Social Security, the less the windfall elimination provision affects you, as long as you had “substantial earnings” from those jobs. The amount that’s considered substantial varies by year, ranging from $3,300 in 1974 to $21,750 this year. You’ll experience the maximum 50% reduction if you have 20 or fewer years of substantial earnings. If you have 30 years of such earnings, the provision doesn’t affect you at all.

Q&A: Social Security and same-sex marriage

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Dear Liz: My partner of 30 years recently died. Am I eligible for Social Security survivor benefits? I don’t want anything I don’t deserve, but if I’m entitled to something, every penny would be appreciated. I am 54 and make minimum wage.

Answer: Your eligibility for Social Security benefits as a spouse depends on three factors: whether your state recognizes same-sex marriages, whether it did so on the date your partner died and whether you were legally married. (You wrote “partner” rather than “spouse,” which suggests you may not have been.)

The Supreme Court paved the way for Social Security to offer same-sex benefits when it ruled parts of the federal Defense of Marriage Act unconstitutional last summer. Social Security has taken the position that it must follow state law in recognizing same-sex marriages and that what matters is where the couple live, not where they married. Even in states where same-sex marriage is currently legal, Social Security denies survivor benefits if it wasn’t legal when the spouse died.

If you are eligible, you can start receiving benefits as early as age 60. (Survivor benefits are available at any age if the widow or widower takes care of a child receiving Social Security benefits who is younger than 16 or disabled.)

Starting early reduces your survivor benefit significantly compared with what you would get if you wait until your full retirement age of 67. As a survivor, though, you’re allowed to switch to your own benefit later, if that benefit is larger. (That’s different from spousal benefits, where spouses are precluded from switching to their own benefits if they start getting Social Security checks before their own full retirement age.) If your survivor benefit is likely to be larger than any benefit you’ve earned on your own, though, it typically makes sense to delay starting Social Security as long as possible to maximize what you’ll get.

Q&A: Student loan forgiveness and taxes

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Dear Liz: You recently wrote about student loan forgiveness. After 15 years as a public defender, my wife was diagnosed with multiple sclerosis and could no longer pursue her career as a lawyer. She applied for forgiveness of the federal student loans she used to attend law school. About three years later, the loans were forgiven. The caveat is that she was required to pay income taxes based on the balance that was erased. The taxes amounted to $63,000. Getting the loan forgiven was easy compared with coughing up the money for the IRS. I thought this should be mentioned.

Answer: The IRS generally considers forgiven or canceled debt as income to the borrower. There are several exceptions, however.

Borrowers don’t have to pay income taxes on student loans forgiven through programs that require them to work for a specific number of years in a certain profession. So public service loan forgiveness, law school repayment assistance, teacher loan forgiveness and the National Health Service Corps’ loan repayment program won’t trigger taxes. Forgiven debt also may be excluded from income if the borrower was insolvent at the time.

Student loan discharges for death, disability, closed schools, false certification and unpaid refunds typically are considered taxable income, however. Forgiveness of remaining balances under income-based repayment programs after 20 or 25 years of payment is also considered taxable.

The taxes owed will be a percentage of the amount forgiven, based on your tax bracket. If you’re in the 25% federal bracket, for example, you’d pay $25,000 for $100,000 of forgiven debt, plus any state and local income taxes. It’s less than the tab you owed, of course, but as you note it can still be a tough bill to pay.

Q&A: The stigma of bankruptcy

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Dear Liz: Someone recently asked you about whether they were responsible for their mother’s credit card debt, and at the end of your answer you suggested she talk to a bankruptcy attorney. How can you promote that kind of irresponsibility?

Answer: Some people are quite firm in their belief that bankruptcy should never be an option — even for elderly widows on fixed incomes with no hope of ever paying off their debts. But if enough things go wrong in their lives, these anti-bankruptcy folks might find themselves grateful that there’s a legal way out of the debtors’ prison that their lives would become.

Q&A: Disability and student loan liability

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Dear Liz: My nephew was persuaded by a recruiter to attend a for-profit technical college. Then, once he entered, his “advisors” persuaded him to take many, many classes — at full price — always handing him student loan paperwork to get more loans. Then they persuaded him to change his major, necessitating a whole new round of classes and loans to pay for them.

The problem is my nephew has Klinefelter syndrome, a genetic disorder. He was not diagnosed until he was an adult and therefore was left with a mental age of about 12. This is what made him so gullible. He did graduate but in the six years since has not been able to find work because it is obvious to employers that he is mentally challenged. Now his training is becoming obsolete, making jobs even harder to get. This means there is no way he will ever be able to pay back the thousands of dollars in loans. Klinefelter is listed in the disabilities registers, but because he can function, any kind of aid is really hard to get. Do you have any advice on what to do about the looming debt?

Answer: The questionable tactics of some for-profit colleges have prompted regulatory investigations and lawsuits. That doesn’t mean the debt that affected students accumulated will be easy to erase.

Many for-profit colleges rely heavily on federal student loans for their funding. If your nephew’s loans are federal, he might be able to qualify for a total and permanent disability discharge of his federal loans, said Mark Kantrowitz, publisher of EdVisors, a college resource site.

“He will need a doctor to certify that his disability prevents him from obtaining gainful employment,” Kantrowitz said. “He will also need to earn less than the poverty line annually for the three-year post-discharge monitoring period.”
Kantrowitz has more information about such discharges on his site.
Another option is to consult an attorney, Kantrowitz said. “If he lacked the mental capacity to enter into a contract, he might be able to repudiate the loans,” Kantrowitz said.

Your nephew also may be able to discharge the loans in bankruptcy, Kantrowitz said. Typically student loans can’t be erased this way, but there are exceptions, including one woman in Maryland who was able to erase $340,000 in law school and other education debt after a judge said her Asperger’s syndrome made it impossible for her to hold a job.

“The odds of success are low, but many of the successful discharges involved disabilities, especially when the loan program did not provide for a disability discharge,” Kantrowitz said.

A final possibility, if your nephew has federal student loans, is to sign up for an income-based repayment program. If his adjusted gross income is less than 150% of the poverty line, his required payment would be zero and he would be eligible for the discharge of his debt after 25 years.

Q&A: Credit card debt and surviving spouses

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Dear Liz: You’ve answered a number of questions regarding credit card debt when a person dies. But I haven’t quite seen the answer I need. If a spouse dies, and the remaining spouse is not on the credit card account, is it still the responsibility of the survivor to pay the card? Does the answer vary by state? Or is it a federal law?

Answer: As you read in previous columns, the dead person’s assets are typically used to pay his or her debts. If there aren’t enough available assets to pay the creditors, those creditors may be able to go after the spouse in certain states and certain circumstances.

In community property states such as California, debts incurred during a marriage are typically considered to be owed by both parties. Other community property states include Arizona, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In the rest of the states, a spouse’s debts are his or her own, unless the debt was incurred for family necessities or the spouse co-signed or otherwise accepted liability.

Collection agencies have been known to contact spouses, children and other family members and tell them they have a legal or moral obligation to pay the dead person’s debts, regardless of state law. If you are married to someone with significant debt, contact an attorney to help you understand and perhaps mitigate your risk.