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5 Rules for Claiming Social Security Benefits After Divorce

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Even in the best of times, Social Security is a maze of complicated rules and notable exceptions. For a divorced spouse who wants to claim benefits on their ex’s record, it can get even trickier.

Here are five key rules to keep handy, according to an advisor and a Social Security expert who specialize in divorce.

These rules apply to any ex-spouse claiming spousal benefits, but for simplicity’s sake, we’ll refer to the claimants as ex-wives and their former spouses as ex-husbands. As of December, there were nearly 11 times more women than men receiving spousal benefits, according to the Social Security Administration.

Let’s start with the rules on who qualifies. The ex-wife who wants to claim spousal benefits must have been married at least 10 years. The couple must have been divorced two years, or the ex-husband must already be claiming Social Security, explains Marcia Mantell, founder of Mantell Retirement Consulting and author of the book “What’s the Deal with Social Security for Women?”

Also, the ex-wife must not have remarried. (If her spouse and ex-spouse are dead, however, she can claim the highest benefits of either.)

1. The ex-wife making the claim will get 50% of the ex-husband’s primary insurance amount. It doesn’t matter when he claims.

In other words, she’ll get half of what his benefit would be at full retirement age, says Chris Chen, head of Financial Strategists in Newton, Massachusetts. “She doesn’t have to wait until he claims at a later age. She will only get 50% of his benefit at his FRA,” he says.

2. The spousal benefit amount ‘tops up’ the claiming spouse’s own benefit.

For example, an ex-wife’s Social Security benefit is $1,000 a month. Her ex-husband’s benefit at FRA is $2,400, meaning she is eligible for a $1,200 spousal benefit.

“She gets what’s called an auxiliary or spousal top up,” Mantell says. “She’ll get an additional $200 because of the calculation on her ex that yields a bigger benefit for her. But she doesn’t get both, like her $1,000 plus $1,200 from the calculation on her ex that yields a bigger benefit for her. She’ll always get the highest amount for which she’s eligible at that point.”

3. The ex-husband’s Social Security benefit isn’t reduced. In fact, he may never know she’s made the claim.

Even if the man has multiple ex-wives to whom he was married for 10 years, they each could claim 50% of his benefit and it wouldn’t reduce his amount. Further, an ex-wife can make a claim even if she doesn’t know where her ex is; all she has to prove her marriage with a certificate of divorce presented at the Social Security office to collect the benefit.

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Are payouts to multiple ex-spouses a sign that the Social Security system is being abused? The agency doesn’t see it that way, Chen says. It’s protecting those who many not have worked while married, and multiple exes aren’t that common.

Also, a prenuptial agreement cannot legally disallow one spouse from collecting the other’s Social Security benefits. If a woman gets this demand from her fiancé, Chen says, “if she has any sense, she should find another.”

4. If the ex-husband dies before FRA, the ex-wife still can claim benefits on his record.

As Mantell explains, especially if she is raising the kids, she could claim on his benefits, but also continue to receive family benefits while the children are under 16 years old.

But also, as Mantell says, if a woman’s ex-husband dies and she already was getting a spousal benefit, she now can claim ex-spouse survivor benefits and “step into his shoes” by claiming his full amount. “So it’s a big bump,” Mantell says.

She adds that spousal survivor benefits “are a whole bucket of separate rules.”

Bottom line: Keep tabs on an ex-spouse. The SSA will not notify the survivor.

Mantell adds, though, that often funeral directors will contact the SSA, who may then reach out the surviving ex-spouse — particularly when children are involved.

5. If an ex-wife claims her own benefits before FRA, it reduces not only her own payout but also her spousal top-up.

If the ex-wife claims Social Security at 62, before FRA, it is reduced from her FRA amount. Not only that, “she’s going to get a spousal reduction top-up [as well],” says Mantell.