Legaly separation doesn't change Uncle Sam's view of your status
I received an interesting question from a reader last week. She asked, “What are the Social Security-claiming rules for a married couple who have been legally separated for years but have not divorced?”
In this case, both spouses are older than the normal retirement age of 66, but the husband — the larger earner — has not yet claimed Social Security benefits. The wife does not have sufficient lifetime earnings to qualify for retirement benefits on her own work record.
The question is: Does the wife have to wait for her estranged husband to claim benefits before she can collect spousal benefits?
It turns out that the Social Security Administration has a black-and-white definition of marriage. Either you're married or you're not. The rules make no specific provisions for the gray no-man's (or -woman's) land of legal separation.
“If your reader is legally married to the worker even though they are estranged, she is his spouse,” Social Security spokeswoman Dorothy J. Clark explained. “Therefore, all of the rules regarding spouse's benefits apply to her.”
That means in order for the wife to claim spousal benefits — worth 50% of her husband's benefit amount — he has to file for his benefits. Or now that he has reached his full retirement age, he could file and suspend his benefits, triggering spousal benefits for her while deferring his own until they are worth the maximum amount at 70.
Delayed retirement credits are worth 8% per year for each year you postpone collecting benefits between your normal retirement age, currently 66, and 70.
The sad part of this situation is that spousal benefits do not accrue delayed retirement credits. Spousal benefits are worth half of the worker's benefit if claimed at normal retirement age; less if claimed earlier. But they do no grow larger. And this woman is over 66, so she has already missed out on collecting some spousal benefits.
I don't know whether their relationship is cordial, but if they are on speaking terms, the decent thing for him to do would be to file and suspend so his wife could collect spousal benefits.
Unfortunately, she does not have the added protection that divorced spouses have that allow them to claim retirement benefits based on their ex-spouse's earnings record without his or her knowledge, even if the ex has not yet claimed benefits.
To claim Social Security benefits on your ex, your marriage must have lasted for at least 10 years and you must be unmarried. And as long as both spouses are at least 62 and they have been divorced for at least two years, one can claim spousal benefits on the other's earnings record, even if he or she has not yet retired.
