Dear Penny: Should I End My Happy Marriage to Get My Dead Ex’s Social Security?

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Dear Penny,

My husband and I got divorced after 21 years of marriage. I thought I would be eligible for his Social Security. I didn't know about the pre-60 remarriage penalty and remarried before age 60.

Is it illegal to get divorced to get my former husband's Social Security? He is deceased.

I am 62. It's wonderful that I'm happily married, but I'm not happy about missing out on my former husband's Social Security. We were pretty penniless for 10 years building a business together. After that, the business became very lucrative.

In the divorce, he got the business and the retirement accounts. I was awarded the house (and mortgage), child support and alimony for 20 years (which ended 17 years early because I remarried).

-Missing Out

Dear Missing Out,

Few people emerge from divorce court feeling like they got a fair deal. Seeing your husband get the business you built together must have been an especially tough pill to swallow. It’s understandable that you don’t want to leave Social Security money on the table now.

At the same time, you’ve built a new life and a happy marriage. Extra Social Security money would certainly be nice, but not if it jeopardizes your current relationship with the person you love. So if your current spouse is even remotely uncomfortable with the idea of divorcing to get more Social Security, that should be the end of discussion.

Technically, what you’re suggesting could work as long as you got divorced according to the laws of your state. People do get divorced purely for financial reasons. This is often referred to as a strategic divorce. Some couples divorce to help one partner qualify for Medicaid or so that a child can get more financial aid.

Before I go any further, a disclaimer: I’m not an attorney, and it’s essential to consult with one if this is something you’re seriously considering.

The basic rules are as follows. You’re allowed to claim Social Security on an ex-spouse’s work record, provided the marriage lasted at least 10 years. The maximum benefit is 50% of their full retirement age benefit, but Social Security doesn’t let you double dip. You get the higher of your benefit or your ex’s benefit, but you won’t get both.

If they die, you can collect up to 100% of their primary insurance amount through survivor benefits. As you note, you can only collect the ex-spouse’s survivor benefits if you wait until age 60 (or 50 if you’re disabled) to remarry. But if the second marriage ends in divorce or because the second spouse dies, Social Security will allow you to take whichever spouse’s benefit is larger, provided that it’s higher than the amount you qualify for on your own. Again, you get your benefit or his benefit, but not both.

Before you start phoning divorce attorneys, you’ll want to find out how much money is actually on the table. I’d suggest calling your local Social Security office. They can estimate your benefits if you claim on your own record, as well as what you’d get from your ex’s survivor benefits if your current marriage ends. There’s no need to go into details about why the marriage may end.

Keep in mind that divorce isn’t free, even when you’re both in complete harmony. On top of court costs and attorney fees, you may have to jump through extra hoops.

For example, some states require that you maintain separate residences for a certain amount of time before you can get divorced. If one of you is on the other’s employer-sponsored health insurance, a divorce could seriously increase the cost of your medical coverage.

If you need more from Social Security, you may be better off delaying and claiming on your own record. You’ll earn an extra 8% delayed retirement credit for each year you wait past full retirement age until 70. You can’t earn delayed retirement credits when you claim on someone else’s record.

Another option is to take benefits based on your current spouse’s record. The rules for married spouses are similar to the ones for ex-spouses who are both still living. The most you can get is 50% of their full retirement benefit.

Unless you’d be unable to pay bills without the higher survivor benefit, I’d lean heavily toward not divorcing just to get more Social Security. Doing so would complicate the happy marriage you’ve worked hard to build. You may have gotten a bad deal in your divorce, but at this point, it’s wise to move on.

Robin Hartill is a certified financial planner and a senior writer at The Penny Hoarder. Send your tricky money questions to [email protected].

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