DuPage County Divorce Lawyer Blog
Surprising as it may be, divorced people are entitled to receive benefits based upon their ex-spouse’s earning history as well as their own. Moreover, the benefit is based on the ex-spouse’s entire earnings history, not just earnings accrued during the time the couple was married.
Spousal benefits were introduced in an era when most women did not work outside the home and did not earn their own Social Security benefits. Today, women frequently earn more than their husbands, and have higher Social Security benefits as a result. However, because the spousal benefit is largely a relic of a bygone era, it is only fitting that my hypothetical example reflect that era. Consider the marriage of a couple named Mark and Angela, who were married for 30 years, and then got divorced. Mark is now 67. During the marriage, he was the breadwinner, and based upon his earnings, he has accrued Social Security retirement benefits. Angela is 66 and never worked outside the home. Her social security earnings history lists nothing but a series of zero’s over the years. Neither party has remarried.
If they had remained married, when Mark applies for Social Security benefits, the maximum amount of spousal benefits Angela could claim would be 50% of his monthly benefit – his “Primary Insurance Amount” (PIA) – once she reaches full retirement age. Now that they are divorced, she remains entitled to that same amount, provided that certain criteria are met. According to the Social Security Administration, those criteria are as follows:
1. The marriage must have lasted 10 or more years.
2. Angela must be unmarried.
3. Mark and Angela must both be 62 years of age or older.
4. Mark must be entitled to Social Security retirement or disability benefits.
5. The benefit Angela is entitled to receive based on her own earnings history must be less than the benefit she would receive based on Mark’s earnings history.
In this hypothetical, the marriage lasted 30 years, Angela remains unmarried, both parties are older than 62 years of age, Mark is entitled to Social Security retirement benefits, and Angela is not entitled to any Social Security benefits of her own. Therefore, Angela would be entitled to receive an amount equal to 50% of Mark’s PIA. Her decision to collect these benefits would not affect the size of Mark’s benefits. He would still receive the full amount of his social security benefits, regardless of the benefit Angela receives.
Generally, Mark will have no way of knowing if Angela is collecting benefits based upon his record. On the other hand, if Angela decides to remarry, she will no longer be entitled to collect benefits on Mark’s record unless her later marriage ends by death, divorce, or annulment.
If Mark had remarried, Angela could still receive benefits on his record. Even in that case, Angela’s decision to collect these benefits would not impact the size of his current wife’s benefits.
For Angela to collect spousal benefits, Mark must have filed for Social Security but he does not need to be actively collecting his benefits. This is commonly referred to as “filing and suspending.” He only needs to reach full retirement age and then file for Social Security in order to activate the spousal benefits. Upon divorce, if Mark has not applied for retirement benefits, but can qualify for them, Angela can receive benefits on her record once the couple has been divorced for at least two years.
Angela can collect spousal benefits in two different ways: as her only benefit, or as an incremental increase to her individual benefits. Under the facts of this hypothetical, she would not be entitled to her own individual benefits. However, she can choose to collect spousal benefits in an amount less than 50% of her ex-husband’s PIA before reaching full retirement age. If she waits and starts collecting at full retirement age or later, her benefits would be 50% of Mark’s PIA. If she had her own Social Security benefits, and if Mark’s PIA were more than two times her own PIA, Angela might be eligible for spousal benefits as an incremental increase to her own individual benefits.
If Angela were eligible for retirement benefits on her own record, the Social Security Administration would pay that amount first. However, if the benefit on Mark’s record was a higher amount, Angela would get a combination of her own benefits, plus spousal benefits, to equal that higher amount. If she had reached full retirement age and would be eligible for a spouse’s benefit as well as her own retirement benefit, she would have a choice between receiving only the amount of her ex-husband’s benefits now and delaying receipt of retirement benefits until a later date.
If Mark were to pass away, Angela would also become eligible for survivor benefits. She could receive the same benefits as a widow, without affecting the benefits of other survivors (for example, if Mark had remarried, his second wife’s benefits would not be affected). The criteria to collect survivor benefits from an ex-spouse are similar to those to collect Social Security spousal benefits. The couple must have been married for at least 10 years, the ex-wife must be unmarried currently or remarried after age 60, and she must be at least 60 years of age.
Social Security can be a complex topic, especially for divorced individuals, and Social Security benefits often constitute a significant source of income for people after retirement. It is in your best interest to find out whether you are eligible for, and how to claim, spousal benefits on your ex-spouse’s Social Security. If you have questions about your Social Security spousal benefits, regardless of the status of your marriage, contact a family law attorney for help.