Social Security Spousal Benefits After Divorce

An often overlooked consequence of divorce is the impact it can have on your Social Security benefits.  This is especially true in situations where one spouse was the primary income earner during the marriage.  In these situations, when the couple remains married the spouse who worked less is entitled to a spousal benefit, which is 50% of the primary earning spouse’s benefit.  A divorced spouse may still be entitled to a spousal benefit based on his or her former spouse’s work, but it will depend on a number of factors.  If you are in this situation, considering divorce, and are nearing retirement age there are a couple of general rules that you should know.

If your former spouse is living, you can receive benefits based on your former spouse’s work if:

• Your marriage lasted 10 years or longer;
• You’re unmarried;
• You’re age 62 or older;
• The benefit you’re entitled to receive based on your own work is less than the benefits you’d receive based on your spouse’s work; and
• Your former spouse is entitled to Social Security retirement or disability benefits.  If your former spouse hasn’t applied for benefits, but can qualify for them and is age 62 or older, you can receive benefits on your former spouse’s work if you’ve been divorced for at least two years.

There are a few key points to make that will help you understand these guidelines.  First, the 10-year requirement is a strict cutoff, there is no rounding up and even a marriage of 9 years and 11 months will not be long enough to receive benefits based on your former spouse’s work.  If your marriage is close to reaching the 10 year mark it may be to your advantage to delay the divorce process.  See our article on Separate Maintenance for more information about receiving support without a divorce. 

Second, you must be unmarried to receive a benefit based on your former spouse’s work.  Once you remarry your benefit would be based on the work of your current spouse.  Should that marriage end in a divorce you could then revert to receiving the benefit based on the work of your first spouse.  If you had multiple marriages that lasted 10 years and are unmarried you can choose the highest benefit available to you. 

Third, remember that the benefit you receive based on your former spouse’s work will be equal to 50% of their benefit.  If the benefit you would receive on your own is more than that you will receive that larger benefit.  The Social Security Administration advises you to file for both your benefit and your spousal benefit, in which case they will grant the larger benefit.  Even if you do not know your former spouses Social Security Number, a representative of the agency can locate your spouse’s records.

Fourth, a unique feature for divorced spouses is that the spouse receiving a benefit based on the other’s work does not have to wait for that spouse to file for benefits.  For example, with a married couple if the wife was filing for a spousal benefit based on her husband’s work history she would have to wait until her husband filed for his benefit.  If that couple was divorced for two years and both parties were over the age of 62 the wife could file without waiting for her ex-husband.

Fifth, another unique rule for divorced couples is that at the full retirement age both former spouses can apply for benefits on each other’s work records; thereby delaying their own benefit and allowing it to earn 8% a year in delayed retirement credits until age 70.  When a couple is married only one spouse can file a restricted application and earn delayed retirement credits.  

If your ex-spouse is deceased, you can receive benefits:

• At age 60, or age 50 if you are disabled, if your marriage lasted at least 10 years, and you aren’t entitled to a higher benefit on your own record.
• At any age if you’re caring for your ex-spouse’s child, who also is your natural or legally adopted child and younger than 16, or disabled and entitled to benefits.  Your benefits will continue until the child reaches age 16 or until the child is no longer disabled.  You can receive this benefit even though you weren’t married to your ex-spouse for 10 years.

If your former spouse is deceased, the benefit you would receive is typically called a survivor benefit.  A survivor benefit is equal to 100% of what the benefit would have been for your former spouse.  As you can see from the guidelines the same ten-year rule generally applies, but you can begin receiving the benefit two years younger at age 60.  Note that taking the benefit before full retirement age will result in a reduced amount of monthly support.  An important distinction with the survivor benefit is that there is no age restriction or ten-year rule if you are raising a child under age 16 that you had with your former spouse.  Another important point with respect to the survivor benefit is that the remarriage rules are different.  If you remarry before age 60 you will not be entitled to the survivor benefit, but if you remarry after age 60 you will continue to receive the benefit.  You can also choose the largest benefit whether that is the survivor benefit, the spousal benefit from your new spouse, or your own.

Resources:

“What Every Woman Should Know” by The United States Social Security Administration