Amy & Dan Smith's Planning for Life: How Divorce Affects Social Security Benefits

The 10-year rule and understanding your benefit options

When it comes to retirement income, Social Security typically accounts for the lion’s share, so it makes sense to understand how to maximize your benefits. As you may know, marital status is an important decision factor when it comes to timing benefits. But, did you know divorce also comes into play? Many people see divorce as a chance to start over, a clean slate, if you will. But just because your former spouse is out of the picture, doesn’t mean his or her Social Security benefits have to be, especially if he or she earns more money than you. In fact, your ex can actually mean extra when it comes to what you’re eligible to collect.

Here’s why. If you were married at least 10 years before your divorce, you may be eligible to receive Social Security benefits based on your ex-spouse’s record, assuming he or she is entitled to them. If your ex-spouse hasn’t applied for retirement benefits yet, you can still collect on his or her record if you’ve been divorced for at least two years. This holds true even if your former spouse has remarried. And, claiming benefits on his or her record has no effect on what a new spouse can claim. Of course, you have to qualify to do so.

To claim benefits on an ex-spouse’s record, you must be 62 or older and still single. In addition, your own work-based benefits must be less than the benefits you’d receive on your ex-spouse’s record. On the other hand, if you were the higher earner during your working years, be aware that your ex can receive benefits based on your record. The same qualifying criteria apply to your ex as well, and your own benefits will not be affected.

How divorce benefits work

Once you have reached full retirement age, you’ll have a choice between your own benefits and your spouse’s. You can choose to receive your ex-spouse’s benefits first, while delaying your own retirement benefits. Waiting longer could result in a higher benefit down the road based on the effect of delayed retirement credits. Keep in mind, though, that getting married again generally means you can’t collect on your former spouse’s benefits record, unless the subsequent marriage also ends, for whatever reason.

Prior to full retirement age, if you’re eligible for your own retirement benefits and ex-spouse benefits, you’ll receive a combination of benefits equal to whichever is higher. Basically, your benefits will be paid first and then your ex-spouses benefits will supplement the rest. Keep in mind the amount you receive depends on the age you begin drawing benefits. Generally, the longer you wait to begin claiming Social Security, the higher your benefit.

There’s no one-size-fits-all solution when it comes to Social Security and when to start drawing benefits. However, it’s important to talk to your advisor and determine how to maximize the benefits coming to you, including whether it makes sense to apply for benefits on your ex-spouse’s work record.

From "Amy & Dan Smith's Planning for Life" column appearing monthly in the Blue Ridge Leader, Loudoun County, VA.

The foregoing article contains general legal information only and is not intended to convey legal advice.  For legal advice regarding estate planning, the reader should contact his/her lawyer.

Daniel D. Smith is a partner in the law firm of Smith & Pugh, PLC, 161 Fort Evans Road, NE, Suite 345, Leesburg, VA 20176. (Tel: 703-777-6084, He has practiced law in Loudoun County since 1980.