Is Social Security counted as income in the means test under the new bankruptcy law?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2021

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No. Social security payments are excluded from the calculation of income for purposes of the means test. It’s important though not to comingle social security income—so that the federal social security income is not confused with other types of income that are not excluded. If you deposit all of your income into a single account, make sure that you keep good records so that you can identify which proceeds are attributable to which type of income. For example, you receive social security check by direct deposit each month in the amount of $800.00. You also have a part-time job which varies in amounts each week depending on the hours you work. Make sure you track which part of the funds in your checking account derive from social security and which derive from your part-time job.

Some consumer bankruptcy lawyers believe that unemployment compensation derives from the Social Security Act and should also be excluded from Current Monthly Income. Because this is a commentary on the law, instead of a direct exclusion contained within the code, its interpretation will vary from state to state. Since the 2005 amendments of the bankruptcy court, some courts have ruled that despite unemployment compensation being derived from the Social Security Act, it is still income for purposes of the means test. The reasoning is that the benefits are designed to replace income and are, therefore, income for purposes of the means test.

Some jurisdictions may include disability payments and private plan disability income as income in the means test as well.

Be sure to consult with an attorney in your jurisdiction to see how these benefits are treated in your state before you file your petition

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