Family Law 101: Social Security Derivative Benefits In Divorce

A standard provision in Marital Settlement Agreements between divorcing spouses is language waiving the right of both spouses to claim an interest in the Social Security Benefits to be received by the other spouse.

Our clients often ask two questions:

(1) Can I receive a portion of the Social Security benefits paid into by my spouse?

(2) Why would I waive my right to receive Social Security benefits?

The Maybe. The answer to the first question is: maybe, and sort of. If you are divorced you can receive benefits on your ex-spouse’s work record if:

(1) You were married to your ex-spouse for 10 years or longer;  

(2) You are unmarried;

(3) You are age 62 or older;

(4) Your ex-spouse is entitled to Social Security retirement or disability benefits; and

(5) The benefit you are entitled to receive based on your own work is less than the benefit you would receive based on your ex-spouse’s work.

The Sort of. If eligible, you do not receive a “portion” of the benefits your ex-spouse is entitled to receive. In fact, the benefits you receive have no effect on the amount your ex-spouse gets. Your benefits are independent. In that context, what you receive are often referred to as “Derivative Benefits.”

The Waiver. You are now probably asking why a waiver of this right is so common in Marital Settlement Agreements. Simply put, divorcing couples usually want to begin the next phase of their life independently and do not want to be tied to each other, however loosely. Most divorcees are relatively young, still able to work, and may plan to remarry. You can easily see how a call from your ex-spouse 20 to 30 years after the divorce asking for your social security benefit information could be less than ideal. Even if you are the party requesting Derivative Benefits, keeping track of your ex-spouse’s age, eligibility, and benefits may not be worthwhile.

This is a general overview of claiming Derivative Benefits on an ex-spouse’s work record and based on current federal law. Each individual situation requires an independent analysis of the specific facts and circumstances involved. [Disclaimer]

Our family law team at Naimish & Lewis can advise you on this and other dissolution and divorce related matters. To schedule an initial consultation with an attorney at our firm, please contact us