As you near retirement, you may realize that your ideal life does not include your current partner. This isn’t an uncommon thought, as reports by the U.S. Census Bureau entitled, “Number, Timing, and Duration of Marriages and Divorces: 2016” indicate that among men and women ages 60+, at least 20% have been married at least twice.

However, while someone may be emotionally and mentally ready to leave a marriage that is irreparably broken, it might be financially wise for them to pause a formal dissolution of marriage due to the laws surrounding Social Security retirement benefits. For certain couples, there may be a significant financial benefit to remaining married for just a few months or less.

The Social Security retirement system has factored in the reality that only one spouse is the wage earner for the entire family. Therefore, only one spouse is contributing to Social Security from year to year throughout the marriage. In order to account for this, the system allows spouses to become eligible for Social Security retirement benefits based on their spouse’s work history. However, there is a catch in that individuals only have access to their partner’s benefits if they have been married for at least 10 years. Critically, divorced spouses continue to be eligible to reap this benefit so long as the length of their marriage was ten years or more.

Many individuals are not aware of these caveats—much less that you can actually collect Social Security benefits based on their former spouse’s earning history—which can function as a comfortable safety net as you are approaching retirement and planning out the next stages of your life.

Social Security Benefits at a Glance

Social Security replaces a percentage of your pre-retirement income based on your career earnings. The percentage of your pre-retirement earnings that Social Security replaces is based on your greatest 35 years of earnings and fluctuates depending on how much you earn and when you elect to begin payments.

You traditionally become eligible for Social Security retirement benefits by working and paying Social Security taxes. These tax payments earn you “credit” towards social security benefits. You will need a certain minimum number of credits, which depends on the year you were born, to be granted access to your benefits. Generally, people become eligible for social security retirement benefits after approximately 10 years of work. These years or credits do not have to be earned consecutively. For example, if you had to stop working before you had enough credits but later choose to return to the workforce and secure those credits, you can still gain eligibility.

The Social Security Administration cannot pay you any retirement benefits unless you have these credits; however, you may be able to receive benefits based on your spouse’s—or former spouse’s—work history.

How to Know if You are Eligible for Your Spouse’s Social Security Retirement Benefits

As further outlined on the Social Security Administration’s website, you may be eligible to receive Social Security retirement benefits based on your former spouse’s work history, provided that:

• The marriage lasted longer than 10 years;
• You are not currently married;
• You are 62 years old or older;
• You are entitled to Social Security retirement or disability benefits; and
• That the benefit that you would be entitled to receive based on your own work is less than the benefit you would receive based on your former spouse’s work.

If you later remarried, you cannot receive benefits unless your subsequent marriage was dissolved by divorce, annulment, or death. If you are eligible for benefits based on your own record, the amount of those benefits must be smaller than the benefits based on your former spouse’s record. In simpler terms, you will receive the larger of the two amounts.

Additionally, your former spouse would not have to have already applied for or be receiving retirement benefits for you to be eligible. Importantly, if you were to receive benefits based on their work history, it would not diminish their entitlement to Social Security retirement benefits. Stated another way, you are not taking your former spouse’s retirement benefit but rather receiving your own, separate benefit, which is calculated using your former spouse’s work history.

That being said, the timing in which you choose to opt for these benefits can impact how much you receive. If you choose to apply as a divorced spouse after reaching full retirement age, your benefit will be equal to one-half of your former spouse’s retirement or disability payment. If you choose to apply before reaching full retirement age, the benefits will be lower. Again, regardless of which age you decide to start receiving these benefits at, they would not impact the amount of the payments your former spouse would receive.

What Happens if Your Former Spouse Passes?

If your former spouse passes away, you could be eligible for a death benefit, which could be worth up to 100% of the regular monthly payments they received. Again, in this situation, the 10-year rule applies.

Other requirements are still at play in these cases, such as whether you choose to remarry or not. Your eligibility for survivor benefits on your former spouse’s record will not be impacted if you choose to marry after 60. Regardless, if you were to qualify for survivor benefits, it is expected that you would have to bring this to the attention of the Social Security Administration.

In the end, when it comes to having this much money potentially available, it is important that you play your own advocate and seriously consider all options available to you when it comes to planning out your future and retirement finances. Many individuals are unaware that they may be able to receive Social Security benefits on their former spouse’s record and struggle due to either not having enough saved to cover the cost of living or having the potential to receive more due to the nuanced formulas on which Social Security benefits are granted.

If you or someone you know is planning on getting a divorce or looking to plan out their finances post-separation, consider speaking to experienced legal counsel to learn about all of the options available to you to meet your future financial and relationship goals today.

Michael Liptrot is senior counsel in Tully Rinckey PLLC’s Manhattan office, where he focuses his practice on family and matrimonial law. For close to a decade, Michael has practiced family law across New York City, including the five boroughs, the lower Hudson Valley area, and New Jersey. Throughout his time practicing, Michael has gained a vast amount of experience in family and matrimonial law, with specific experience in divorce, custody, child support, family offense, neglect/abuse, guardianship, and SIJS (Special Immigrant Juvenile Status) matters. He can be reached at info@tullylegal.com or at (888)-529-4543.