Marriage, Divorce, and Social Security Survivor Benefits: FAQ

Many older adults rely on their Social Security benefits to replace their income after retirement. But a lot can happen in your mid-60s. Your spouse could pass away, or you could get divorced or remarried. How will these life changes affect your Social Security benefits? Here are some commonly raised questions on the topic and some helpful answers.

Social Security is based on federal law, but the laws affecting older people can vary by state. This page provides an overview of Social Security benefit topics, but it is crucial to talk to a local older adult law attorney to address your individual needs.

Are Spouses Entitled to Social Security Benefits?

Yes. Spouses are generally entitled to spouse’s benefits after the couple is married for at least ten years. As long as your spouse is eligible for or receiving retirement benefits, as the spouse, you can receive payments equal to 50 percent of their benefits, even if you never worked on your own. If you take benefits early, your benefits may be reduced below 50%.

You may also be eligible for benefits if you worked and qualified with your own work credits. The benefit amount can depend on the amount of time you spent working (qualifying work credits) and your salary up to the earnings limit. If you are eligible for Social Security benefits based on your own employment, you can collect your own retirement benefit or your spousal share, whichever is the higher amount.

How Are Spouses Legally Recognized?

You should be aware that the Social Security Administration (SSA) generally follows state laws when determining eligible spouses. If the marriage was legally recognized at the time in the state where the couple resides, then spouses could collect spousal benefits during the marriage and survivor benefits after death.

If a common law couple continually resides in a state that recognizes common law marriage, spouses could collect Social Security benefits. However, if they establish a marriage under common law in another state and then move to a state that does not have common law marriage, the new state would recognize the marriage.

For example, West Virginia does not recognize common law marriage. If a couple qualified as spouses in a common law marriage state and moved to West Virginia, they would be considered married in West Virginia.

Can Same-Sex Spouses Get Social Security Benefits?

Same-sex couples also qualify as spouses for spousal benefits if they are legally married. The Social Security Administration provides the same spousal benefits to same-sex couples as any other married couple. If a same-sex couple had a civil union or other partnership because their state did not recognize same-sex marriages, they might still qualify as spouses, depending on the laws of the working spouse’s home state.

What About Social Security Benefits After a Divorce?

If you get divorced, you may still be entitled to Social Security through your divorced spouse. Sometimes, spouses will split the retirement account in half upon divorce. In others, you may continue to receive a monthly sum. An experienced divorce attorney can advise you on how a court would allocate the benefits after separation.

To qualify for Social Security through your ex-spouse, the marriage must have lasted at least ten years, you must be over 66 and divorced for at least two years (without remarrying), and your former spouse must still be eligible to collect Social Security or disability benefits that exceed your own work record.

Can My Former Spouse Get Benefits If They Remarry?

Generally, getting remarried cancels your access to Social Security through your ex-spouse. However, there are still ways to collect benefits. If your remarriage to a new spouse occurs at age 60 or older, you can still get benefits under the former spouse. The same applies if you become disabled and remarry at age 50 or older You may also collect benefits if you qualify separately under your own record.

Am I Entitled to My Spouse’s Social Security Benefits After Their Death?

Widows and widowers may collect 100 percent of their deceased spouse’s Social Security benefits when they reach the full retirement age. Widows and widowers can also get widow benefits at any age if they are caring for the deceased’s disabled child or child under 16 years of age. Children can also get a percentage of the worker’s benefit, but there is a maximum limit to the benefits paid to surviving family members.

Full retirement age depends on when you were born. You can find your full retirement age on SSA.gov. If you were born in 1962 or later, full retirement age is 67. Survivor benefits may be reduced if the widow or widower takes benefits before they reach full retirement age, beginning at age 60. For example, if a widow in New Mexico started taking benefits at age 60, they would get payments of 71.5% of the full monthly benefit amount.

A surviving spouse can also receive a one-time lump sum death payment of $255 if the couple was living together at the time of death or receiving benefits on the deceased’s earnings record.

What If We Divorced Before My Ex Passes Away?

As long as you meet the requirements above for receiving surviving divorced spouse benefits following a divorce, you can still receive those ex-spouse benefits after your ex passes away. You must be at least 60 years old (50 if disabled), the marriage must have lasted at least ten years, and you had not remarried before you turned 60.

If you get married to your current spouse after you turn 60, that will not affect your survivor benefits under Social Security. If your new spouse also passes away, you could collect whichever Social Security survivor benefit is largest.

How Does My Pension Affect My Social Security Benefits?

Many private and public sector employers choose to contribute to employee pension plans rather than Social Security. If your employers contributed to Social Security during your employment, you could receive full Social Security benefits and any pension payments upon your full retirement age.

However, if you receive a government pension or a pension established by an employer that did not withhold Social Security benefits from your paycheck, you could see a reduction in your Social Security benefits. These reductions could also affect spousal and survivor benefits. Certain federal laws apply to these cases, so contact an experienced older adult law attorney if you have questions.

Do I Have to Pay State Income Tax on Spousal Benefits?

Some states do not tax Social Security benefits, and other states don’t have any state income tax. For example, if an older person living in Mississippi is receiving survivor spousal benefits, they would not be taxed on their Social Security benefits but could still pay state tax for other forms of income. Other states like Washington and Alaska don’t have any state income tax.