What About the Spouse? Death or Divorce

WHAT ABOUT THE SPOUSE?

Traditionally, the spouse worked at the home, but was not the family wage earner. What happens to the spouse, when the wage earner died?

What if one spouse has traditionally worked for low wages or had minimal earnings during the working career and the major wage earner of the family died?

Is there any protection available for the surviving spouse?

So if you qualify as a spouse under the state law of your residence, you are a spouse for social security purposes?   What about common law marriages?  What  about a marriage entered into in good faith but for one of several reasons determined not to be valid marriage? What about legal same sex marriages?

Common law marriages are not a real problem, if recognized in the state law.

Deemed marriage depends on case by case analysis focusing on the good faith of the parties, i.e. their actual knowledge.  If the marriage was entered in good faith, for example if the parties were without knowledge that the prior marriage was not properly terminated,  the defective marriage might still support an award of benefits.

The U.S. Supreme Court in June found Section 3 of the Defense of Marriage unconstitutional.  Previously, Section 3 had directed the federal government to consider only heterosexual couples for social security benefits for married couples.  As gleaned from the below Bulletin, social security is already acting on the change in the law.  This will still cause problems since not all the states recognize same sex marriage.  Social security uses the claimant's state law (law of the domicile) for assessing who is a spouse for benefits programs.

If the wage earner is entitled to either social security retired or disabled benefits, the spouse may be entitled to husband’s or wife’s benefits, i.e. the spouse of the insured wage earner is entitled to benefits based on the insured’s earnings record if the spouse.

Divorce:

The divorced spouse of an insured wage earner is covered on the wage earner’s account if:

1. The wage earner is insured and is disabled, blind or at least 62 years of age
2. Claimant and the insured were validly married under state law for at least 10 years immediately before the divorce became final (when it says 10 years it means 10 years and not 9 years, 359 days)
3. The claimant files for benefits
4. The claimant is not married
5. The claimant is age 62 or older
6. The claimant is not entitled to a retirement or disability insurance benefit based on a primary insurance amount which equals or exceeds one-half of the wage earner’s primary insurance amount.
7. If the claimant has a waiting period to get benefits depends on when the divorce was received 42 USC 402(b)

What happens if the wage earner is younger then 62 years of age at the time of the divorce?

1. Need no. 2 above.
2. The claimant is not entitled to an old-age benefit that is equal or greater then the insured’s primary insurance account, and
3. The claimant is unmarried after age 60 or claimant remarried after age 50 but before reaching age 60 and was entitled to disabled widow or widow’s benefits or met the disability requirements at the time of remarriage. 20 CFR 404.336a

Survivor/Dependent Benefits Spouse

A widow or surviving divorced spouse of a fully insured deceased wage earner is entitled to survivor benefits on the deceased wage earner’s account if:

1. The widow or surviving spouse is not married

2. Is 60 years of age or older (if disabled, is 50 years of age, but not yet 60)

3. Is not entitled to retirement benefits that are equal to or larger than the insured person’s primary insurance benefit amount.

Friday, August 9, 2013

Mark Hinkle, Acting Press Officer

For Immediate Release

News Release

SOCIAL SECURITY

Statement of Carolyn W. Colvin, Acting Commissioner

of Social Security, on Payments to Same -Sex Couples

“I am pleased to announce that Social Security is now processing some retirement spouse claims

for same-sex couples and paying benefits where they are due. The recent Supreme Court decision

on Section 3 of the Defense of Marriage Act, made just over a month ago, helps to ensure that all Americans are treated fairly

and equally, with the dignity and respect they deserve. We continue to work closely with the Department of Justice.

In the coming weeks and months, we will develop and implement additional policy and processing instructions.

We appreciate the public’s patience as we work through the legal issues to ensure that our policy is legally sound

and clear.  I encourage individuals who believe they may be eligible for Social Security benefits to apply

now, to protect against the loss of any potential benefits. We will process claims as soon as

additional instructions become finalized.” 

To learn more, please visit

www.socialsecurity.gov

.

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Social Security National Press Office

Baltimore,

MD

410-965-8904

press.office@ssa.gov