Can a Divorced Spouse Waive the Social Security Income of a Spouse?
By Elizabeth Rayne, J.D.
After a long-term marriage, you may be entitled to receive Social Security benefits under your ex-spouse's work record. However, application is optional; you do not have to file any sort of waiver to stop the Social Security Administration from sending you benefits. If you are interested in receiving such benefits, you must qualify by meeting certain requirements and actually apply.
After getting a divorce, you can only collect Social Security based on your ex-spouse's work record if you meet the requirements set by the Social Security Administration. With a few exceptions, your marriage must have lasted more than 10 years, you must be at least 62 years old and cannot be married. However, if you have a child who is disabled or under 16 years old, you may request benefits at any age or if the marriage lasted less than 10 years, but the benefits will only last until the child reaches age 16 or is no longer disabled. If your ex-spouse has not yet applied for Social Security benefits, you cannot apply for benefits based on her work record unless two years have passed since the divorce.
Whether or not to apply for Social Security benefits based on your ex-spouse's work record is up to you. Instead of actively waiving the income if you're not interested in these benefits, you would simply not apply. If you are eligible for Social Security based on your own work record, you are generally only entitled to receive benefits based on your ex-spouse's record if those benefits would be higher. Therefore, if the amount you would receive under your own work record is lower than your ex-spouse's or you have no work record, you have the option to apply.
If you have remarried since the time of the divorce, you are no longer entitled to collect benefits based on your ex-spouse's work record. However, if your new marriage ends by divorce or death, you are once again entitled to apply for benefits. Further, if you or your spouse had multiple marriages that lasted for more than 10 years, the same rules apply for each marriage, meaning that multiple ex-spouses could apply for benefits based on one spouse's work record.
Reasons to Decline Benefits
A spouse may decline to apply for benefits on an ex-spouse's record because she would receive more money by collecting Social Security on her own record. Further, receiving Social Security may also mean that you are responsible for paying more in income tax. On the other hand, if you are eligible for Social Security benefits based on your own record and that of your ex-spouse, you have the option of first collecting benefits based on your ex-spouse's record and delay your own claim until you reach 70 years of age, the current retirement age, which may increase the amount of benefits you would ultimately receive.
Elizabeth Rayne earned her J.D. from Penn State University and has been practicing law since 2009, advising clients on issues ranging from employment law to nonprofit management. For two years, she served as a contributing editor for the "Vermont Environmental Monitor."