Elder Law

Marriage, Divorce, and Social Security Survivor Benefits: FAQ

Many elder persons rely on their Social Security benefits to replace their income after retirement. But a lot can happen in your mid-60s. Your spouse may pass away. You might get divorced. Or married.

How will these life changes affect your Social Security benefits? Here are some commonly raised questions on the topic, along with some helpful answers.

Are Spouses Entitled to Social Security Benefits?

Yes, but you must be married for at least ten years first. As long as your spouse is eligible for or receiving retirement benefits (and you don't start collecting early), you may receive payments equal to 50 percent of their benefits even if you never worked on your own.

If you did work, most employers must pay into the Social Security system on your behalf. Unless you worked for certain government agencies, in which case you may have a pension instead. And if you are eligible for Social Security benefits based on your own employment, you can collect those or your spousal share, whichever is higher.

How Are Spouses Legally Recognized?

You should be aware that the Social Security Administration 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.

Therefore, if a common-law couple continually resides in a state that recognizes common law marriage, spouses could collect Social Security benefits. However, if they move to a state that does not legally recognize common law marriage, they could not.

The same is true for same-sex couples. But it is important for aging same-sex couples to know that if you married through any ceremony before same-sex marriage was permitted, you would not be eligible for spousal benefits, even when the state later recognized same-sex marriages.

What About Social Security Benefits After a Divorce?

If you get divorced, you may still be entitled to Social Security via your ex. In some cases, 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 best advise you on how a court would likely allocate the benefits after separation.

In order 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 ex must still be eligible to collect Social Security or disability benefits that exceed your own.

And If They Remarry?

You can still collect via your ex, even if they get remarried. But, getting remarried yourself generally cancels your access to Social Security through your ex-spouse. You may, however, still collect your own benefits.

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

Yes. Widows and widowers may collect 100 percent of their deceased spouse's Social Security benefits when they reach the full retirement age which is 65 years old if you were born before 1940 and increasing incrementally to 67 years old if you were born after 1962. Additionally, you may begin collecting without penalty at 50 years old if you have a disability.

Taking early benefits, in any case, reduces the amount you can receive.

What If We Divorced First, Before Ex Passes Away?

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

If you remarry after you turn 60, that will not affect your survivor benefits under Social Security. And your new spouse also passes away, you could collect whichever 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 pension payments upon your full retirement age.

If, however, 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 as well. Certain federal laws apply to these cases, so contact an experienced elder law attorney if you have questions.