Social Security Benefits in a Gray Divorce

If you are going through a Gray Divorce, you need to consider the effect it will have on your Social Security benefits. The potential income stream through Social Security should be considered at the time of divorce, and you should understand the consequences of remarriage on your Social Security benefits. Social Security rules are complex, and it is advised to seek experienced legal counsel to understand if you are entitled to benefits.

A lesser-earning spouse may qualify for spousal Social Security benefits.

Although the court cannot divide Social Security benefits at trial, many individuals going through a Gray Divorce may qualify for benefits based on their spouse's earning history. This is common when one spouse earned significantly less income in their marriage than the other spouse.

Who is entitled to spousal Social Security benefits?

If you wish to receive Social Security benefits based upon your former spouse's earnings record, the following criteria must be met:

• You must have been married for at least 10 years before divorcing.
• You are at least 62 years old.
• You have remained unmarried after the divorce.
• Your former spouse must be entitled to Social Security retirement or disability benefits.
• The Social Security benefits you are entitled to are less than what your former spouse is entitled to.

The actual payments to the lesser-earning spouse are comprised of a payment from that spouse's personal benefit plus a portion of benefits based on their former spouse's record to reach the higher amount.

Survivor Benefits

If one of the former spouses dies, the other may be entitled to survivor benefits (also called death benefits) if your marriage lasted longer than ten years, you are currently unmarried, and aged 60 (or aged 50 if disabled).

Medicare

You may qualify for Medicare under your former spouse's work record if you are eligible for Social Security benefits under the same. Generally, you must be age 65 to qualify, but disabled divorced widows or widowers under age 65 and disabled children may be eligible for Medicare after a certain qualifying period.

When can you receive spousal Social Security benefits?

To collect spousal Social Security benefits, the lesser-earning spouse does not have to wait for their former spouse to apply for Social Security benefits if they have been divorced for at least two years.

Delayed retirement credits (an increase in Social Security benefits if you delay retirement past full retirement age) are not included in Social Security benefits based on the record of the former spouse. However, if you have reached retirement age and are qualified to receive your former spouse's benefit, you may elect to receive only the former spouse benefit and delay your own retirement and receipt of benefits. A retirement delay could allow your personal benefits to catch up to or surpass the spousal benefits you are receiving.

What happens if I remarry?

If you receive spousal benefits, getting remarried will stop those benefits. If you later divorce again, you may be allowed to restart receiving the benefits.