Looking for another way to market your elder law and estate planning practice? Divorce attorneys can be a great referral source of potential clients who find themselves in need of updating their estate plans. One method of encouraging divorce attorneys to refer your firm to their clients is to give them something of value that they can provide to their clients.

I prepared a summary, which I include below, that describes how marriage, divorce and death can affect a spouse’s Social Security benefits. My aspiration would be to provide this summary (including my name and contact information) to nearby divorce attorneys and let the divorce attorneys hand my summary out to their clients.

While there are plenty of topics that elder law attorneys could cover to assist a person going through a divorce, I realize that the time and research necessary to devote to creating the summary is usually the biggest impediment. If you wish to start with a summary of Social Security benefits, please feel free to cut and paste and utilize any part of my summary that you feel would be useful in creating your own document. Good luck, and let me know how this works for you.

The Effects of Marriage, Divorce, and a Spouse’s Death upon a Person’s Eligibility for Social Security

Many couples have a spouse who works in the home and therefore does not have a sufficient work history to qualify for Social Security benefits at retirement. However, this spouse can become eligible for Social Security based upon the other spouse’s work history. This spousal benefit can equal as much as one-half of the Social Security benefit earned by the “working” spouse. The “at home” spouse can start taking this benefit as early as age 62, but the spousal benefit would be reduced if the spouse is under the full retirement age (up to only 32.5% of the “working” spouse’s benefit). There is no added benefit to be gained by delaying a spousal benefit after the full retirement age. In the past, it was possible for a person to collect a spousal benefit until they reached age 70 and then switch to their own Social Security benefit, but this has not been possible since a change in the law in 2015. If you are still married, then you can’t obtain spousal benefits until your “working” spouse starts receiving his or her own Social Security benefits.

If you are divorced but were married for at least 10 years, you are eligible for this spousal benefit from your ex-spouse as long as you are single. The Social Security Administration must have foreseen a situation where an ex-spouse refuses to claim Social Security benefits out of pure spite so you can apply for spousal benefits any time after your ex-spouse has attained the age of 62 even if your ex-spouse has not yet applied for benefits. If you remarry, but this subsequent marriage ends (divorce, death, etc.), you once again become eligible for benefits from your earlier ex-spouse. If you have multiple ex-spouses to whom you were married for at least 10 years, you are eligible for whichever spousal benefit would be larger. The spousal benefit has no effect on your ex-spouse or that spouse’s current or subsequent husband or wife. If you are already receiving a spousal benefit from an ex-spouse and then get remarried, those spousal benefits will usually terminate.

You can be eligible for survival benefits at the death of a spouse or an ex-spouse (if your marriage lasted at least 10 years and you are single), and these rules are the same whether the deceased was a spouse or an ex-spouse. If the spouse dies while receiving Social Security benefits, and you have passed your full retirement age, or if you wait until you have reached your full retirement age, then you can receive the same amount that your deceased spouse was receiving from Social Security in lieu of your own benefit. If you are under your regular retirement age, then you can start receiving your deceased spouse’s Social Security benefit amount in lieu of your own at a reduced amount (up to 38.5% less) based upon your age if you are at least 60 (or 50 if you are disabled). Survival benefits in the amount of 75% of the deceased spouse’s benefits are also available at any age if you are taking care of a child under the age of 16 or a disabled child if the disability occurred prior to age 22. If your deceased spouse or ex-spouse was not yet receiving Social Security Benefits, then the survivor benefit amount is based on the amount that your deceased spouse would have received had they reached full retirement age.

There are also survival benefits available to minor children and for dependent parents. While there is a cap on the disbursements to all family members, a benefit paid to an ex-spouse does not affect the cap.

August 14, 2020/by ElderLaw