Having been married for 40 years, you are entitled to certain Social Security benefits in the event of the dissolution of your marriage. However, unlike almost all other retirement benefits earned during the marriage which are characterized as marital property, such as the Federal Employees Retirement System and military pensions, Social Security benefits are treated differently. Pursuant to the Social Security Act of 1935 and the amendments thereto, Social Security benefits extend to all former spouses who are married 10 years or more. These “derivative benefits” equal 50% of all of the Social Security beneficiary’s benefits earned, not just those earned during the marriage. Your right to receive these benefits does not reduce your husband’s right to receive his full benefit. In the event your husband were to die, you would receive 100% of his benefits as his surviving former spouse.
Interestingly, even if your husband were to remarry and that marriage dissolves after 10 years or more, both you and your husband’s second former spouse would each be eligible to receive 50% of his total benefits earned and he would still receive 100% of the benefits. If he dies, and you are one of two ex-spouses, you will each receive 100% of the benefits. As you can see, this means that well over 100% of the benefits your husband earns may end up being paid
If Social Security benefits were treated as marital property, a spouse would not have to wait 10 years to “earn” the benefit and total payouts could not exceed 100% of the benefit earned. While there is currently a movement underway to amend the Social Security Act further to prevent the payment of over 100% of a worker’s benefit during any given earning period, as well as to limit the benefit payable to ex-spouses to that earned only during their marriage to the working spouse, at the present time, payment in excess of 100% of a worker’s benefits can be paid.
Nancy L. Burt is an associate at Feinberg Mindel Brandt & Klein in Los Angeles. Her practice is devoted exclusively to the area of family law.