Survivor's Benefits and Injured Spouse Form

I was widowed. I remarried in 2008. My kids receive survivor's benefits, which is the money that pays most of our bills. My new husband owes back child support because he was homeless when I met him. His take home pay for 2008 was less than 2 house payments. With the Injured Spouse form it seems they will take a percentage of what is really my tax return and give it to his ex-wife. This form does not protect my children and I. We are really supporting him. By not including the Social Security as part of our income, and including my current husband's gross income as if it was income that came into our household, the ex-wife will receive nearly 100% of my husband's income for 2008, and my children will be cheated! What can I do?

When I got Social Security Children's Insurance Benefits (CIB) for my son, the CIB income was considered my son's income and reported under his SSN on the 1099 form from SSA. It was not reported under my SSN. Now, my son aged off CIB about three years ago. Maybe something about the taxation of CIB has changed since then.

I did NOT include the CIB on our joint tax return in any of the eight years that I received such benefits on his behalf. I probably am in a much more middle income household than yours. I can tell you that while we did have one audit, excluding his CIB from our return was not an audit issue.

I believe that you are doing your taxes incorrectly. I don't think that the CIB amounts should be included in your joint tax return with your spouse, if that is what you are doing.

If your children had other signficant income sources, you might have to file separate tax returns for each of your children. Social Security benefits can be taxed, if the overall income is high enough. However, few children have significant income from other sources. Your post does not suggest that your children are an exceptional in this regard. I never had to file a separate tax return for my son during those eight years. My son did have some incidental interest over the years from some savings bonds that I cashed for him during those years. I bet you don't even have that.

I suggest that you take your info to a tax pro and see what he or she tells you. You don't need a tax attorney. If you go to one of the chain tax preparation outfits, ask for an employee who has prepared a lot of returns involved Social Security benefits (vs an employee who has only done returns involving earned income).

BTW, if you received SSA benefits as the custodial parent of your minor children, you will have to include the amount reported on your form 1099 from SSA, if you file jointly.

However, IMO, only the 1099 amount under you SSN should be included on a joint return.

The other option here is to file as married, but filing separately.

First, ensure that the benefits are properly reported. Social Security is taxable to the person who has the legal right to receive them. Survivor's benefits paid to you (the widow's benefit) are taken into account on your return to the extent the benefits are taxable.

However, the survivor's benefits paid to your kids is taken into account on their returns, if their benefits are taxable. Most kids don't have enough other income to even be required to file a return, let alone have enough for the benefits to be taxable.

SSA should issue Forms 1099-SSA to your kids for the survivor's benefits they get. Those amounts do not go on your return--as indicated above, they would go on your kid's returns. You only take into account any payments you received for yourself. SSA should issue you a Form 1099-SSA for the benefits paid you. That's the amount that you deal with when preparing your tax return.

See IRS publication 915 for the details of how SSA benefits are taxed.

If you didn't get this right in past years and included your kid's benefits on your return, you may be entitled to a refund. To get the refund, however, you'd generally need to amend the return within 3 years from the due date of the return. This is done on Form 1040X.

Assuming that you've got the amounts right, then the next thing is to figure what the effect of the Form 8379 would be. Compare that to what you'd get back if you and your husband filed separate returns. If filing separate returns will give you the better result, then that's the way you ought to go. You have that choice.

You can get forms and publications at most IRS offices, have them mailed to you by calling the IRS toll free at 800-829-3676 (800-TAX-FORM), or download them from the IRS at:
http://www.irs.gov/formspubs/index.html

 According to a special provision, if you have worked and earned for only one and one-half years in the last three years prior to your death then your spouse and children can receive survivor benefits.

I was widowed. I remarried in 2008. My kids receive survivor's benefits, which is the money that pays most of our bills. My new husband owes back child support because he was homeless when I met him. His take home pay for 2008 was less than 2 house payments. With the Injured Spouse form it seems they will take a percentage of what is really my tax return and give it to his ex-wife. This form does not protect my children and I. We are really supporting him. By not including the Social Security as part of our income, and including my current husband's gross income as if it was income that came into our household, the ex-wife will receive nearly 100% of my husband's income for 2008, and my children will be cheated! What can I do? Since you state that your children's survivor's benefits pay most of the household bills, it would appear that you do not work.  Therefore it would appear that the only reason that you are receiving a refund at all is due to your husband's employment. Otherwise, if you were not working you would not be filing a return at all, and would not receive any refund. I realize that the refund that is showing up on the return is primarily from EIC, due to the children, but again, if you are not working then the only reason its showing up is due to his income. Even if the SS benefits could be included on your return, they do not qualify for EIC.

retirementconsultant, perhaps you missed that this thread is over 6 months old. The original poster likely will not come back at this point to see it.