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5 Rules for Claiming Social Security on Your Ex-Spouse After Divorce

By Robin Hartill, CFP® – Oct 9, 2020 at 9:51AM

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Could you get more Social Security by using the work record of your ex-spouse? Here are the rules on Social Security and divorce.

Love and marriage don't always work out. But even if your marriage ended in divorce long ago, here's a piece of good news: You may be able to get more Social Security by taking benefits based on your ex-spouse's work record instead of your own.

You can claim up to 50% of your ex-spouse's primary insurance amount. That's the amount they're eligible for once they reach full retirement age, or FRA, which is between 66 and 67. If your ex-spouse is deceased, you may qualify for survivors benefits of up to 100%, though the rules for surviving divorced spouses are different.

Claiming Social Security based on a former spouse's record has zero impact on their benefits. So if you're the former spouse whose ex could get more based on your earnings, don't worry -- you'll still get your full monthly payments. If your current spouse gets benefits based on your record, their payments won't be impacted, either.

Here are five rules you can't afford not to know about Social Security benefits and divorce.

Bride and groom figurines face away from each other on a wedding cake.

Image Source: Getty Images.

1. You can claim on your record or your ex's record -- but not both

Social Security doesn't allow for double dipping. Essentially, you'll get whichever is higher -- 100% of your own retirement benefit or 50% of their benefit, but not both.

If the amount you qualify for based on your own work record is more than what you'd get from 50% of your former spouse's full retirement, Social Security gives you your benefit, not your ex's. If your own benefit is less than 50% of your ex's, Social Security uses your benefit and then taps your former spouse's record to make up the difference.

You can contact your local Social Security office to find out how much you could get based on their record. You'll need to provide their Social Security number or other identifying information to help locate their record, along with your marriage certificate and divorce decree.

2. You can't remarry and claim ex-spousal benefits, but it's fine if your ex does

To claim benefits based on the work history of an ex-spouse who's still alive, you're not allowed to remarry. However, it doesn't matter if your ex-spouse has remarried. You can still file for benefits based on their record regardless of their marital status, so long as you remain single.

If a person has multiple ex-spouses, they're all allowed to claim based on the spouse's record. You, of course, can only claim on the record of your most recent ex-spouse.

Should you remarry, you'll need to notify Social Security, which will terminate your benefits -- unless the person you're marrying is your ex-spouse. Otherwise, you can collect on your new spouse's history, rather than your ex's, once you've been married for at least a year.

3. Both of you must be at least 62

To claim on behalf of an ex-spouse, he or she needs to be eligible for Social Security. That means they must be at least 62 and have at least 40 work credits, which translates to 10 years of full-time work. You also need to be at least 62, regardless of whose record you're using.

Keep in mind that if you claim Social Security at 62, you'll reduce your monthly benefit no matter whose earnings it's based on. To get the maximum payment -- 50% of theirs or 100% of your own -- you'll have to wait until you've reached your FRA. Claim before that and you'll get less than half their benefit.

If you're claiming on your own record, you can increase your benefits by 8% for every year you delay past your FRA until you're 70. But if you're using your ex-spouse's history, you won't receive extra for holding out beyond your FRA.

However, if you were born before Jan. 2, 1954, there's a twist: You can claim one person's benefit once you reach your FRA, then switch over later on to get a higher benefit. For example, you could take 50% of your ex's benefit at 67, then switch over when you qualify for a higher benefit on your own at 70.

4. You're only eligible if you were married for 10 years

You'll only qualify for benefits based on an ex-spouse's record if your marriage lasted 10 years and you've been divorced for at least two consecutive years. Beyond the two-year requirement, it doesn't matter how long ago the marriage ended. Even if you've been divorced for decades, you can use their record if you meet the other criteria.

5. It doesn't matter whether your ex is taking benefits

As long as your former spouse qualifies for benefits, you can use their record to claim -- even if they're not getting Social Security yet.

Your benefit is based on what they'll qualify for at FRA. If they claim early for a reduced amount or delay to get higher checks, your benefit won't be affected.

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