Can I Get My Ex's Benefit?

You need to be married for 10 years, but in some states a common-law marriage counts

by: Stan Hinden, from: AARP Bulletin, June 30, 2011

Q. My husband and I have been together for 19 years, but have only been married for nine years. We are currently seeking a divorce. Will I be entitled to any Social Security benefits as an ex-spouse?

A. Sorry, but Social Security rules require that you be married for at least 10 years in order to receive benefits on the work record of your former spouse.

However, depending on the state in which you and he lived for all or part of those 19 years, you may be able to claim that you had a valid common-law marriage prior to your formal marriage.

Some states recognize common-law marriages, others do not. If yours does, this could help you claim benefits as an ex-spouse. Call Social Security at 1-800-772-1213 and ask what you must do to provide proof of a 10-year marriage that includes a period of common-law marriage.

You may also wish to consult Living Together: A Legal Guide for Unmarried Couples, by attorneys Toni Ihara, Ralph Warner and Frederick Hertz.

Q. If you are married for 10 years or more and get a divorce, will you receive benefits as an ex-spouse from Social Security when you're 55 years old?

A. No, not at age 55. In order to receive benefits on the work record of your ex-spouse, you must be at least 62 and unmarried. The amount is generally half of what the working spouse gets.

But the spousal benefit might not be worth claiming. When you reach 62 and become eligible for benefits based on your own work record, Social Security will compare that amount to the amount of the ex-spouse benefits. If your own benefit is more than half of his, you would not receive your ex-husband's benefit.

See the Social Security website for details on spousal benefits.

Also of interest: Claiming benefits on third husband's record.

Stan Hinden, a former columnist for the Washington Post, wrote How to Retire Happy: The 12 Most Important Decisions You Must Make Before You Retire. Have a question for the Social Security Mailbox? Check out the archive. If you don't find your answer there, send a query.