Divorce and Social Security Benefits

Divorce and Social Security

For clients who are approaching sixty years of age and getting divorced, a common question during the intake process is whether the client is entitled to their spouse’s Social Security benefits after the divorce is over. Social Security benefit rules are complex and confusing, and even more so when you are divorced. Whether you are going through a traditional litigated divorce or are using mediation, the potential amount of Social Security benefit that a spouse can receive after a divorce when approaching the age of sixty needs to be discussed and investigated. The lawyer’s preparation for the client includes cash flow projections related to proposed equitable division of property and (sometimes) spousal support. For clients approaching sixty years of age, it is important to include the projected benefits a client will receive from Social Security. As a client, it is important for you to be educated on what benefits you can claim from Social Security even though it may be several years after divorce when you apply for benefits. The Social Security Administration does not proactively seek out the best available benefit for you. Rather, it is up to you as the applicant to know what is available and to make the best selection for your financial benefit. Whether you are considering divorce or are already divorced, you should know how the Social Security rules apply to you. Here is what you need to know.

Social Security Benefits Based on Your Ex-Spouse’s Work Record

If your marriage lasted ten years or longer, you can receive benefits on your ex-spouse’s record (even if he or she has remarried) if:

  • You are unmarried and you are age sixty-two or older;
  • Your ex-spouse is entitled to Social Security retirement or disability benefits and;
  • The benefit you are entitled to receive based on your own work is less than the benefit you would receive based on your ex-spouse’s work.

If your ex-spouse has not applied for retirement benefits but can qualify for them (is age sixty-two or older), you can receive benefits on his or her record if you have been divorced for at least two years.

The Social Security benefits you receive based on your ex-spouse’s work record has no effect on the amount of benefits your ex-spouse or his or her current spouse may receive.

If you are eligible for benefits both on your own record and your ex-spouse’s, you will get the larger of your own benefit or the equivalent of half of your ex-spouse’s Full Retirement Age benefit. Full Retirement Age is age sixty-seven for anyone born after 1959. You can go here to find your Full Retirement Age. The Social Security Administration will pay your benefit first and then, if the benefit on your ex-spouse’s record is higher, you will get an additional amount based on your ex-spouse’s record so the combination of the two equals half of your ex-spouse’s benefit.

If you remarry, you will no longer be eligible for benefits based on your ex-spouse’s record.

Social Security Benefits When Your Ex-Spouse Dies

If you are the divorced spouse of a worker who dies, you could get survivor benefits just the same as a widow or widower, so long as your marriage lasted ten years or more.

  • Benefits paid to you as a surviving divorced spouse won’t affect the benefit rates of other survivors getting benefits on the worker’s record.
  • Survivor Benefits can be received independent of individual benefits.
  • Benefits can be taken as early as age sixty.

Survivor Benefits are worth 100% of what your former spouse (as a deceased worker) collected or was entitled to collect at time of death.

You can remain eligible for Survivor Benefits if you remarry as long as you wait until you are age sixty before you walk down the aisle.

Divorced surviving spouses have more flexibility than other Social Security recipients because their own work record Social Security benefits and Survivor Benefits represent two different sources of money. A surviving ex-spouse can choose one benefit first and then switch to the other benefit later if it results in a larger amount. Planning how to take your own benefit versus Survivor Benefits can make a significant monthly financial difference in your life. So, be sure to speak with someone who can help you make the right election decision(s).

Are the Rules Different 

When it comes to collecting Social Security Benefits as an ex-spouse, the same rules regarding age and work apply. So, any Social Security benefits taken prior to your full retirement age while still working will be subject to earnings cap restrictions (resulting in your benefits being reduced). However, when you reach full retirement age, your benefit is reviewed and recomputed, so those benefits may not be lost. The earnings cap in 2022 is $19,560. Any benefit taken before your full retirement age (on your own record or as an ex-spouse or as a surviving ex-spouse) will be permanently reduced.

What about Delayed Retirement Credits

Delaying benefits past your full retirement age will grow that benefit eight percent per year up until age seventy. However, delayed retirement credits do not apply to Survivor Benefits because those benefits are frozen at the time of recipient’s death. Therefore, there is no advantage to delaying taking Survivor Benefits past your full retirement age.

What if I Have Been Married More Than Once

For individuals who are on their second or third divorce, there is an additional consideration. If any of those marriages lasted ten years or more, then you can choose to take Social Security benefits from whichever ex-spouse has the biggest benefit. It’s possible that the Social Security Administration is paying benefits from one worker for two or three or more ex-spouses if each of that worker’s marriages lasted ten years or more.

Should you need the advice of an experienced divorce attorney or have questions or concerns about your divorce situation, know that we are here to help and ready to discuss those issues with you.