The “Ex” Factor: Social Security Benefits from a Former Spouse

Most people plan on applying for Social Security Administration (SSA) benefits when they retire.  But what most people don’t realize is they could be eligible for more than just one type of benefit.

Retired divorcees may be eligible to receive social security benefits on account of their ex-spouse.  Under federal SSA rules, an ex-spouse may be eligible to receive up to half of the social security retirement benefit that their former spouse is receiving or will be entitled to receive.  There are various factors that are taken into consideration.

The most important consideration is if, in fact, the ex-spouse qualifies for benefits for his or herself.  If the ex-spouse is not eligible for social security benefits on their own, then the person wishing to apply cannot receive half of a non-existent retirement benefit.

The person interested in applying must be 62 years of age, but their ex-spouse doesn’t have to be at traditional retirement age.  In other words, the former spouse does not need to apply for the benefits first.  Additionally, the two former spouses in question must have been married for at least 10 years and divorced for at least 2 years.  Finally, the person applying has to be unmarried at the time they are applying for these benefits.

Even though applicants could be eligible for both their own social security benefits and those from a former spouse, they can only elect to receive the one with the higher rate.  In some instances, if the wage discrepancy between the two former spouses is significant enough, even half of a former spouse’s social security benefits could be greater than the full amount of the applicant’s.

Although it is usually the case of a women applying for benefits from her ex husband, the SSA also pays benefits to divorced husbands. Divorced husbands rarely get such payments because their own Social Security retirement benefit is generally higher than anything they might be due from an ex-wife.

Some women sign divorce decrees relinquishing their rights to Social Security on their ex-husband’s record.

Putting such a clause in a divorce contract does more harm than good.  There is no writing that an attorney can put into a divorce decree that can take precedent over a federal law.  As such, social security clauses in divorce decrees are void and are never enforced.  Secondly, this social security benefit does not reduce the ex-spouse’s benefits.  Nor does the money paid to an ex offset any benefits a current spouse might be due on their accounts.  Lastly, the insertion of such clause in a divorce decree is misinforming and dissuasive to people who may actually need this social security benefit.

Nonetheless there may be strategic reasons not to apply for a former spouse’s retirement benefit.  There are ways re-align social security benefits to generate a larger payout though planning and timing.

For example, someone applying for social security benefits could potentially use their own benefits until their ex-spouse passes away at which point they may be entitled to widow or widower’s benefits. Widows are due between 71% at age 60 and 100% at full retirement age of what the husband was receiving before he died.

The Law Office of Jeffrey R. Scholnick has decades of experience handling the Social Security application process for clients.  Applying for Social Security benefits shouldn’t have to be frustrating.  Applicants have everything to gain by working with an experienced Social Security lawyer.