Social Security rules when divorcing a younger husband

Traditionally, American men tend to be about two years older than the women they marry. Of course, some men do marry older women, but that less typical coupling can create some confusing rules when it comes to claiming Social Security benefits — especially if that marriage ends with the couple divorcing.

And while older Americans are more likely to be married than younger Americans, they are also more likely to get divorced, according to the Census Bureau.

At least 9 in 10 adults who are 60 or older have been married, a significantly higher rate than estimates for the general adult population of 63% for all men and 69% for all women. But not all of them stay married.

The percentage of divorced adults ages 55 to 64, at 43% for both sexes, is much higher than the general adult population, where a third of men and women 20 or older who have married have also been divorced.  

“Since the 1990s, the national trend of divorce among adults 50 or older has risen, often linked to the marital instability of the aging baby boomer generation,” according to an April 2021 Census Bureau report.

One reader wrote to me for advice on Social Security claiming options for one of those recently divorced couples where the women, 67, is seven years older than her ex-husband, who's 60.

“Can she claim half of his Social Security benefits as an ex-spouse now, or must she wait until he is 62?” the adviser asked.

I told her that the wife must wait until husband is at least 62 years old to claim Social Security spousal benefits on his earnings record if that spousal amount is larger than her own retirement benefit.

Because she was born after Jan. 1, 1954, she can't file a “restricted claim for spousal benefits” and claim only her spousal benefits while her own retirement benefits continue to grow up until age 70. Whenever she files for Social Security, she will be “deemed to file for all available benefits” and she will be paid the highest benefit to which she's entitled at that age, whether on her own earnings record or as a spouse. She doesn’t get to choose.

In addition, the couple must be divorced at least two years if the wife wants to claim Social Security benefits on her ex even if her ex has not yet filed for Social Security. At that point, she would be considered an “independently entitled” ex-spouse.

However, since the wife is already older than her full retirement age of 66 years and two months, she can claim her full Social Security retirement benefits now, plus any applicable delayed retirement credits worth 0.66% per month for every month she postpones claiming benefits beyond her full retirement age up to age 70. Once her ex-husband turns 62, she may be able to step up to a larger benefit if her spousal amount is larger than her own retirement benefit.

The maximum spousal benefit is worth 50% of her ex-husband’s full retirement age benefit amount if she claims it at her full retirement age or later. Spousal benefits don't earn delayed retirement credits the way retirement benefits do. It doesn’t matter than her former husband would be younger than his full retirement age at that time. It only matters than he is eligible for benefits, meaning his must be at least 62 years old.

For example, assume her ex-husband’s full retirement age benefit is $3,000 per month and her full retirement age benefit is $1,000 per month. Therefore, her spousal benefit of $1,500 per month is larger than her own retirement benefit of $1,000 per month.

However, because her ex-husband isn't yet 62 years old, and therefore not yet eligible to file for Social Security, no spousal benefit exists. If she claimed Social Security now, she would receive her full retirement age benefit of $1,000 per month amount plus any applicable delayed retirement credits.

Once the husband turns 62 and the couple have been divorced at least two years, she should contact the Social Security Administration (800-772-1213) to see whether she's entitled to a larger benefit, assuming half of her ex-husband’s full retirement age amount is larger than her retirement benefit.

The adviser also asked whether the ex-husband could claim half of his ex-wife’s Social Security benefits now that she is older than her full retirement age.

No, I responded. The husband, who was also born after the Jan. 1, 1954, cutoff date, can't claim only spousal benefits on his ex-wife’s record. Whenever he files for Social Security, he will receive the largest benefit to which he is entitled at the age, whether that's reduced benefits if he files for Social Security before his full retirement age or maximum benefits if he waits until age 70 to claim them.

(Questions about new Social Security rules? Find the answers in Mary Beth Franklin’s new 2022 ebook at Maximizing Social Security Benefits)