A recent change to federal law has created two different rules for ex-spouses who want to apply for Social Security spousal benefits based on their former partner’s earnings record. Which one applies depends on the applicant’s date of birth. The change is the result of the Bipartisan Budget Act of 2015 and took effect in 2016. Here is what you need to know.

Key Takeaways

  • Divorced spouses may be eligible to receive Social Security benefits based on their former spouse’s earnings record.
  • One rule changed for people born on Jan. 2, 1954, or later.
  • If their former spouse is deceased, divorced spouses may be eligible for survivor benefits, which have their own set of rules.

Divorced Spouse Social Security: Recent Rule Change

The basic rules for divorced spouses and Social Security say that if an individual was married for at least 10 years and then divorced, they are eligible to collect spousal benefits on the earnings record of their ex-spouse as long as they are at least 62 years of age and currently single. The divorced spouse can collect on the ex-spouse’s account under these circumstances even if the ex-spouse has remarried.

Furthermore, if the couple has been divorced for at least two continuous years, the ex-spouse can claim benefits based on the other partner’s earnings even if the latter has yet to file for benefits. This contrasts with the rules for current spouses, who can’t collect benefits unless their spouse is already collecting them.

Ex-spouses who were born on or before Jan. 1, 1954, are allowed to file a restricted claim for spousal benefits at their full retirement age (FRA) and suspend their own benefits (based on their own work record) until later, a practice known as file and suspend. This allows their own benefit to keep growing by 8% a year up to age 70, when their benefit maxes out. At that point—or sooner, if they wish—they can switch over to their own, higher benefit.

However, under the rule change, divorced spouses who were born on or after Jan. 2, 1954, are deemed to be filing for all available benefits (spousal as well as their own) when they apply for Social Security. They will automatically receive whichever benefit is higher, but they can no longer take one type of benefit now and switch to another one later.

Spousal benefits and survivor benefits have different eligibility requirements and other rules.

Different Rules for Survivor Benefits

The rule about not switching benefits does not apply to Social Security survivor benefits, which divorced spouses may be eligible for if their former partner is deceased. Divorced spouses can file for survivor benefits as early as age 60 (age 50 if they are disabled) and switch over to their own benefit as early as age 62. They also have the option of filing for their own benefit first, as early as age 62, then filing for survivor benefits when they reach their FRA (66 to 67 for most people) if that will result in a higher benefit.

Divorced spouses who are caring for their deceased spouse’s natural or legally adopted child who is younger than age 16—or disabled and entitled to benefits—can apply at any age. In this case, the rule that the couple must have been married for at least 10 years is also waived. However, the benefits will last only until the child reaches age 16 or is no longer disabled.