Using the number can be. California’s identity theft law protects a deceased person’s identifying information, including a Social Security number, so using a relative’s number after death for an unlawful purpose can be charged under Penal Code section 530.5. Keeping the relative’s benefit payments after the death is a different problem, governed mainly by federal law.

California law covers a deceased person’s number

Penal Code section 530.5(a) makes it a crime to willfully obtain another person’s personal identifying information and use it “for any unlawful purpose,” including to obtain credit, goods, services, real property, or medical information without that person’s consent. The definitions for the chapter that includes section 530.5 are in Penal Code section 530.55: “person” means “a natural person, living or deceased,” along with businesses and other entities (subdivision (a)), and personal identifying information includes a Social Security number (subdivision (b)). A relative who has died is still “another person” under section 530.5.

The penalty is a fine, up to one year in county jail, or both, or a felony term under Penal Code section 1170(h), so the charge can be a misdemeanor or a felony. Section 530.5(a) sets no dollar threshold.

Because the statute requires an unlawful purpose, handling a relative’s affairs lawfully, such as reporting the death or filing a final tax return, is different from opening credit or collecting money in their name.

Federal law: the number, the death, and the payments

Federal law is separate from California law and has its own rules.

  • Claiming the number as your own. 42 U.S.C. section 408(a)(7)(B) makes it a federal felony to falsely represent, with intent to deceive, that a number is the Social Security number assigned to you or to another person when it is not, whether to obtain something of value or for any other purpose.
  • Concealing the death to keep payments coming. Section 408(a)(4) covers a person who knows of an event affecting their own right to payments, or the right of another person “in whose behalf he has applied for or is receiving such payment” (as a representative payee does), and who conceals or fails to disclose it “with an intent fraudulently to secure payment” that is larger than due or not authorized at all.
  • Keeping the payments. 18 U.S.C. section 641 makes it a crime to embezzle, steal, or knowingly convert to your own use any “money, or thing of value of the United States or of any department or agency thereof.” For retirement benefits, entitlement ends “with the month preceding the month in which he dies” (42 U.S.C. section 402(a)), so payments for the month of death and later months are not owed, and keeping and spending them can create exposure under section 641.

Federal penalties

A violation of section 408(a) is a felony punishable by a fine, up to five years in prison, or both. A ten-year maximum applies instead to someone paid for services connected to a benefits decision (including a claimant representative, translator, or current or former Social Security employee) and to a physician or other health care provider who submits evidence for one. A family member who was not paid for such services and did not submit evidence as a provider falls under the five-year maximum.

Section 641 carries a fine, up to ten years in prison, or both, but no more than one year if the total value, combining all counts of conviction in one case, is $1,000 or less. That $1,000 line comes from the federal statute; it is not a California threshold.

What to do

  • Report the death to the Social Security Administration if that has not been done.
  • Do not spend payments that arrive for the month of death or later. Keep them available to be returned, and keep bank records showing what arrived and when.
  • Do not use the relative’s number to open accounts, apply for credit, or claim benefits.
  • Talk to a lawyer before responding to an overpayment notice, a bank’s request to return funds, or any contact from investigators.

Getting help

A death in the family can leave financial loose ends that turn into legal exposure if they are not handled carefully. Call (800) 755-5174 to go over the situation with the Law Offices of David S. Chesley.