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Can a divorced spouse get Social Security benefits?

If you have gone through a divorce from your spouse you may be eligible to receive Social Security benefits in relation to your ex-spouse’s earnings history. It does not matter in this situation if your ex-spouse has remarried or has since died. The two types of benefits that would potentially be available to you are spousal benefits and survivor benefits. In today’s blog post from the Law Office of Bryan Fagan we are going to discuss those benefits and the options that are available to you. Depending on which would be better for you as you enter retirement age, you should be careful which plan you select. 

What are the requirements to receive Social Security benefits from an ex-spouse?

To receive spousal benefits based on your ex-spouse’s earnings history you would need to be at least 62 years old, that is- be old enough to start to claim your own retirement benefits. Next, your marriage would have needed to have lasted for at least ten years and you cannot have remarried since your divorce. Finally, your ex-spouse must be at least 62 years old or be disabled under the rules governed by Social Security. If your divorce occurred less than two years ago, your ex-spouse needs to have applied for Social Security benefits in order for you to be eligible to receive a spousal benefit. 

To receive a survivor’s benefit based on your ex-spouse’s earnings history you would need to be at least 60 years old. Again, the length of your marriage to your ex-spouse needs to have been at least ten years for you to be eligible to receive survivors benefits. Likewise, you must either be unmarried or have waited until age 60 to remarry. Finally, your ex-spouse must qualify for retirement or disability benefits as of the date of his or her death. 

The requirements to receive spousal benefits examined in detail

Let’s examine these requirements a little more in detail so that you understand each requirement that we just went over. In order for you to be able to receive a benefit of any kind under Social Security from your ex-spouse’s earnings history you had to have been married for at least ten years. A key part to understand is that your divorce must have been finalized two years ago. In the event that your divorce is less than two years old your ex-spouse must have already applied for his or her retirement benefits in order for you to be able to qualify for a spousal benefit.

Your applying for and receiving a spousal benefit based on your ex-spouse’s earnings history will not reduce your ex-spouse’s retirement benefit. If your ex-spouse has remarried both you and their new spouse will be able to take advantage of spousal and survivors benefits. The benefits that both you and the new spouse receive will not impact one another. 

So long as your ex-spouse qualifies for Social Security retirement benefits under their earnings history and is 62 or older, has passed away or is receiving disability benefits you can be eligible for a benefit from your ex-spouse. Your ex-spouse does not need to necessarily have applied for their retirement benefit in order for you to receive your own benefit off of their record. 

Finally, you do not need to contact your ex-spouse in advance of your applying for benefits off of their earnings record. Likewise, Social Security will not contact your ex-spouse to notify them, either. You still need to provide proof to Social Security that your marriage lasted at least ten years and that the divorce is at least two years old, however. A copy of your marriage license and divorce decree should do the trick in this regard. Whatever amount of money is greater- your retirement benefit or the spousal/survivor’s benefits of your ex-spouse- will be what you receive from the Social Security Administration. 

What benefits can you take advantage of when your ex-spouse is still living?

If you find yourself in a situation where your ex-spouse is still living then you may be eligible to receive a spousal benefit from the Social Security Administration as long as you and your ex-spouse are both at least 62 years old. In the event that you begin to receive spousal benefits at whatever your “full retirement age” is then you would be eligible to receive at most 50% of your ex-spouse’s full retirement benefit. On the other hand, if you choose to start receiving your ex-spouse’s benefits beginning at age 62 on through until your full retirement age, you would be eligible to receive a reduced amount. 

You have to stick with the benefit that you select first- either your retirement benefits or the spousal benefit based on your ex-spouse’s earnings history. You cannot switch back and forth- Social Security will pay you the greater amount of your retirement benefit or your spouse’s retirement benefit. However, as with most things in the law there are a couple exceptions that I need to make you aware of as it relates to this subject. 

First off, if you were born on or before January 1, 1954 you could be eligible to receive your spousal benefit to begin with and then switch to your own retirement benefit. To do this you needed to have waited until at least your 66th birthday to apply for either benefit and your ex-spouse must be at least 62 years old or be receiving a Social Security disability benefit. You can take your own retirement benefit and then wait until you turn 66 in order to start taking your spousal benefit. For those years while you receive your own retirement benefit, your spousal benefit would be increasing by a certain percentage each year. 

The other exception that you ought to be aware of in relation to spousal benefits under Social Security is that in the event that you cannot receive your spousal benefit due to your ex-spouse not having reached aged 62 yet you can still start your retirement benefit. Once your ex-spouse reaches age 62 you can then receive the spousal benefit if that amount is greater than your own retirement benefit. 

Let’s walk through a hypothetical situation to illustrate these points a little more clearly. Suppose that you are aged 62 and have retired. Your ex-husband is aged 59. If you apply for retirement benefits this year you will receive your reduced retirement benefit. When your ex-spouse turns 62 then you may ask Social Security to receive a spousal benefit based on your ex-spouse’s earnings history. Either way, however, your benefit will be reduced because you applied for your retirement benefit before you reached your full retirement age. 

What benefits can you take advantage of when your ex-spouse is no longer living?

You are eligible for survivor’s benefits if you are aged 60 or older and are either unmarried or waited until after age 60 to remarry. At age 60 you can take advantage of a reduced survivor’s benefit- the amount you receive in benefits will become its peak amount either at age 66 or 67. 

Even if you are receiving a reduced retirement or spousal benefit, you are able to receive the maximum survivor’s benefit even if you receive a reduced spousal or retirement benefit. To be eligible to do so, however, you must be full retirement age or older when you apply for the survivor benefit. Once your ex-spouse has passed away you will receive whichever sum of money is greater: the retirement benefit that you had been receiving or the survivor’s benefit of your ex-spouse. 

Suppose that you applied for Social Security benefits once you turned age 62. You have been receiving a reduced spousal benefit off of your ex-spouse’s earnings history since that time. Now that you are aged 67 and your ex-spouse has passed away in recent months you can now receive up to 100% of your ex-spouse’s retirement benefit because you are now at full retirement age. 

Depending on your circumstances you may be able to start off with your own retirement benefits and then switch to your ex-spouse’s survivor benefits. Let’s go over when you may be able to do so. As early as age 60 you can switch from your ex-spouse’s reduced survivor’s benefits and then switch to your retirement benefit between the ages of 62 and 70.

Additionally, you may be able to begin with your own reduced retirement benefit beginning at age 62 and can then switch to your survivor’s benefit. If your plan is to use of these methods to collect benefits, you are better off asking the Social Security Administration for information on how to proceed. There are certain rules that govern these type of applications that you should be aware of prior to applying. 

How does remarriage impact the ability to receive spousal or survivor benefits from your ex-spouse?

If your ex-spouse ends up getting re-married then you can still obtain survivor’s or spousal benefits under their earning history. The Social Security Administration will pay benefits to your ex-spouse, their new spouse and to you. The amount of benefits that anyone receives will not be impacted- no matter how many of you are receiving benefits at the same time. 

In the event that you get remarried you will usually not be able to take advantage of any benefits through your ex-spouse. The two circumstances where you would still be able to do so are as follows. First, if your second marriage ends via divorce or death, you can become eligible for benefits based on your first marriage. Second, if you decide to get remarried after the age of 60 you would forfeit the spousal benefit off of your first spouse. However, you would still be able to retain the survivor’s benefit off of him or her. What happens here is that the Social Security Administration would pay you which amount of money is greater: your retirement benefit, the survivor’s benefit from your ex-spouse or the survivor’s/spousal benefit from your current spouse. 

Let’s go through a hypothetical example to better explain that situation I just laid out for you in the paragraph prior to this one. Suppose that you and your ex-spouse were married for 13 years. Once you got a divorce, you married another man and have been married for 11 years. You are now divorced and aged 66. Your first husband has remarried, and your second husband recently passed away. 

Due to the fact that both of your marriages ended lasted at least ten years and ended in divorce you could receive whichever amount of money is greater: your own retirement benefit, the spousal benefit off of your first husband or the survivor’s benefit from your second husband. Whichever of these numbers ends up being the most valuable is the one that you would be able to take advantage of. 

Finally, if you get remarried you are eligible to receive a spousal benefit from your new spouse if you are at least 62 years old and you have been married to your current spouse for at least one year. Also, your current spouse must either be currently receiving disability or retirement benefits through the Social Security Administration. 

What happens if you worked and are interested in receiving a survivor’s benefit?

If you are eligible to receive a survivor’s benefit off of an ex-spouse who has passed away and have also worked in your adult life, you can usually receive the amount of money (survivor’s benefit or your own retirement benefit) that is more valuable. In the event that you are still working and have reached full retirement age you would be eligible for benefits so long as you earn less than $1,500 per month (approximately).

Questions about social security benefits and divorce? Contact the Law Office of Bryan Fagan

If you have any questions about the material that we shared with you today in this blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations where you can ask questions and have your questions addressed directly. 

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