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  • Writer's pictureChris Stein, CFP®

Divorced Spousal Benefit: What If My Ex Hasn’t Claimed Benefits?

A reader asks about her Social Security divorced spousal benefit if her ex-spouse has not yet claimed his benefits but is turning 62.

“Can I receive a divorced spouse benefit when my ex-husband turns 62? He is not retired and tells folks he wants to work always. We were married for 18 years. We’ve been divorced since 2000, and I never remarried. How will I ever learn when he decides to retire? I am 72, and he will turn 62 this year.”

This is a ‘good news’ answer. Yes, you can absolutely file under a divorced spouse benefit if your ex-spouse becomes eligible to claim, which is at age 62.

As a divorced spouse, you do not have to wait for your husband to claim. But there are a few conditions.

One is that the divorce had to be at least two years ago.

The two-year requirement is there as a little loophole-killer. If you’re married, you cannot claim your spousal benefit until your spouse files. Social Security doesn’t want people to get divorced simply to take advantage of a divorced spouse benefits rule.

So, you’d have to be divorced for two full years to unlock the requirement that your ex-spouse claim for you to be able to claim. But in your case, you’ve been divorced for quite some time.

All you’ve been waiting for is for your ex-spouse to turn 62, and you clearly know his birthday. You don’t have to communicate with him or get his permission. You just go to the Social Security Administration and claim the divorced spouse benefit, which will go into effect when he turns 62.

You will have to provide proof that you two were, in fact, married and then divorced. And having your ex’s Social Security number is highly recommended. (That’s a good reason for people not to throw away all that paperwork after getting divorced, because you might run into a situation like this.)

This rule – forgiving the requirement that the spouse needs to claim benefits – is one case where being divorced actually relaxes a rule. And it exists for the reason you mentioned: “How will I ever learn when he decides to retire?” How would you know when he claims his benefits if you don’t talk to each other?

And even if you did talk, he could decide he’s just going to work until he passes away and never file for Social Security. If he had to file to unlock the door for you to receive your benefits, he could essentially hold your spousal benefit hostage. So, Social Security removed all of that by giving you this free pass once you’ve been divorced for two years.

So, you can claim as soon as your ex turns 62 – as long as you’ve been divorced for at least two years and you had been married at least ten years. This last requirement doesn’t affect you because you were married much longer. But, Social Security measures the ten years on the actual anniversary, so you’ve got to make it to that tenth-anniversary date. If someone gets divorced a few days too early, they forgo this opportunity.

There is one more area where being divorced relaxes a rule. As a spouse, if someone files early – and age 62 would be early — the amount of the benefit would be reduced. But as a divorced spouse, the fact that he’s 62 does not reduce your spousal benefit.

And, because you are older – at or beyond your Full Retirement Age, which would have been at age 66 – you are eligible for a full spousal benefit, which is one half of his Full Retirement Age benefit, called his PIA (primary insurance amount).

So, the answer is full of good news: you can file as soon as he turns 62. And the fact that you’re 72 means there will be absolutely no penalty or reduction for filing early because you are not filing early.

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