Social Security Benefits & Your Legal Rights After Divorce
Social Security retirement benefits are based on a worker’s earnings record and corresponding work credits. When a marriage ends in divorce, certain individuals may still qualify to receive benefits through an ex-spouse’s record if they satisfy requirements related to marital history, age, and the ex-spouse’s eligibility. These rules allow divorced individuals to access benefits when that option will yield higher monthly amounts than what the individual could receive based on personal earnings alone.
If all requirements are met, and a divorced individual applies at full retirement age, the highest possible spousal benefit is generally 50 percent of the ex-spouse’s primary insurance amount.
Ten-Year Marriage Rule
A marriage must have lasted at least 10 years for a divorced individual to qualify for ex-spousal Social Security retirement benefits. If the marriage did not meet the 10-year threshold, the person does not qualify for benefits based on the ex-spouse’s record. Once this requirement is met, future changes in the ex-spouse’s marital status do not affect the divorced individual’s eligibility, and the right to claim on an ex-spouse’s record remains intact as long as other conditions are satisfied.
Marital Status Requirements
A divorced individual must generally be unmarried at the time of applying for spousal benefits under an ex-spouse’s record. If there is a later marriage after the divorce, that person loses claim to the ex-spouse’s record unless the subsequent marriage ends in divorce or death. When an ex-spouse is still living, the divorced individual seeking benefits must be at least 62 years old. If an individual’s personal benefits are higher than the spousal benefits, the SSA will pay only the personal benefits. If the spousal benefits are higher, the SSA will pay the personal benefits plus the difference between the personal benefits and the spousal benefits. (In other words, the claimant will receive an amount equal to the full spousal benefits.)
Two-Year Divorce Requirement
If the ex-spouse is eligible for Social Security retirement benefits but has not yet filed, a divorced individual may still file for benefits on the ex-spouse’s record if at least two years have elapsed since the divorce was finalized. This rule makes it possible to initiate a claim without relying on the ex-spouse to apply first, provided the ex-spouse is otherwise eligible for retirement benefits and is at least 62 years old.
Survivors’ Benefits
If an ex-spouse dies, a divorced individual who was married to that ex-spouse for at least 10 years may qualify for survivors’ benefits. This type of benefit can sometimes be higher than an ex-spousal retirement benefit. Different remarriage rules apply. An individual who remarries after age 60 generally retains eligibility for survivors’ benefits if the deceased ex-spouse had sufficient work credits for Social Security. Meanwhile, a surviving divorced spouse can remarry after age 50 and still receive survivors’ benefits if they are living with a disability that started before the end of the seven-year period following the death of their former spouse.
An ex-spouse of a deceased worker may qualify for survivors’ benefits regardless of the 10-year rule if the ex-spouse is caring for a child of the deceased worker who is under age 16 or living with a disability. This special provision allows younger ex-spouses to receive benefits that do not require meeting the minimum length-of-marriage requirement.
Government Pension Considerations
Individuals who receive pensions from government employment that was not covered by Social Security taxes may see their Social Security benefits reduced under the Government Pension Offset or the Windfall Elimination Provision. These rules are intended to prevent a person from receiving what is viewed as a double benefit when part of their work record did not contribute to Social Security. The Government Pension Offset can reduce or eliminate spousal and survivors’ benefits, while the Windfall Elimination Provision may reduce personal retirement benefits. Each provision has its own formula.
