Dear Penny: Can My Husband Get My Social Security if He Left Me for a New Woman?

This illustration shows money floating in the background with a person tearing up a photo of a couple meant to represent divorce.
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Dear Penny,

My husband and I were married for 26 years when he left me for another woman. Neither one of us can afford a lawyer. He told everybody he and his woman are engaged! 

We are still legally married. Can the woman he’s with collect widow’s benefits if we’re still married? Can he collect my Social Security if I pass away? We’ve been living separately since 2019. We have not communicated since. I just need to know what I’m in for. 

— J.

Dear J.,

Many things make me jittery when couples remain in this sort of limbo. But one thing you don’t need to worry about is the impact of your husband’s actions on your Social Security benefits. He can stay married to you, divorce you and remarry his love interest, go on to marry and divorce a dozen times over, and so forth. You’d still be able to claim his survivor benefits if he dies before you.

Let me explain how Social Security works for spouses and ex-spouses. If you qualify for more than one type of benefit, Social Security gives you the biggest benefit that’s available to you, but you can’t collect multiple benefits. You can get your own retirement benefit. Or if you’re currently married or divorced, you may qualify for a spousal benefit if your current or former spouse is still living, though it’s capped at 50% of their full retirement age benefit. Or if your spouse or ex-spouse has died, you may qualify for a survivor benefit, which can be as high as 100% of their Social Security benefit.

Dear Penny

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Just to be clear, though: From Social Security’s perspective, you and your ex are still married. Social Security will still consider you married, even if you and your spouse have legally separated. As long as your estranged husband is married to you, he can’t be married to someone else. Unless your husband actually marries this woman, she can’t collect any benefits on his record.

But these distinctions really don’t matter for your purposes. To collect spousal or survivor benefits based on an ex-spouse’s work record, you need to have been married for at least 10 years. You’ve done your time. Your estranged husband could divorce you tomorrow, and it still wouldn’t affect your eligibility for spousal or survivor benefits, assuming you meet the other requirements. The big one is that you can’t remarry if you receive spousal benefits. For survivor benefits, you’d have to wait until age 60 (or 50 if you’re disabled).

When a marriage ends acrimoniously, some people will even try to prevent their ex from claiming Social Security based on their work record in their divorce decree. But as Social Security states on its website: “If you were married at least 10 years, those clauses in divorce decrees are worthless and are never enforced.”

So where does all this leave your ex and his girlfriend/fiancee? Well, if he remarries before age 60 (or 50 if he’s disabled), he wouldn’t be eligible for your survivor benefits if he outlives you. Nor would he qualify for spousal benefits if he remarries. (Remember, though, that you only get a spousal or survivor benefit if it’s higher than your own retirement benefit.) Claiming someone else’s benefit doesn’t reduce their Social Security checks, so you shouldn’t worry about whose benefit he claims.

Should your ex remarry and die before both you and his new spouse, you both could collect survivor benefits. Her benefit would have no impact on your benefit, nor would your benefit affect hers.

I hope I’ve alleviated your worries about the Social Security situation. Unfortunately, there are a lot of thornier aspects to staying in this estranged-but-tethered-together arrangement. Depending on your state’s law, for example, you could be liable for debts your spouse incurred while you’re still married. If you’re not legally separated, you probably have to file taxes as married filing separately. That often results in a bigger tax bill. As long as you remain married, you typically have to keep your spouse as the beneficiary of workplace retirement accounts, like 401(k)s, unless you have their written consent.

Normally, this is the point in my column where I throw in my “Talk to an attorney” disclaimer. But as you remind me (duh), attorneys aren’t cheap. Often when people write to a non-attorney advice columnist, it’s because they don’t have the money to pay someone who’s qualified to get legal advice.

You still may have options for divorce, though. You could look for an attorney who offers a free consultation to at least get a sense of your options. Maybe you could contact your husband about the possibility of an uncontested divorce or settling things through mediation, both of which can save you substantial money. In either situation, you’d need to be cordial to each other and work toward your (hopefully) shared goal of ending this marriage.

Ending a marriage after 26 years can’t be easy, especially when betrayal is involved. But I hope that however you proceed, things will be a little less complicated knowing your Social Security isn’t at risk.

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