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Ask Larry: Why Does Social Security Require 10 Years Of Marriage For Divorced Spousal Benefits?

Today’s column addresses questions about the requirement of 10 years of marriage for divorced spousal and survivor’s benefits, getting unemployment benefits while also qualifying for disability benefits and the effect of not receiving early benefits due to the earnings test. Larry Kotlikoff is a Professor of Economics at Boston University and the founder and president of Economic Security Planning, Inc, which markets Maximize My Social Security and MaxiFi Planner.

See more Ask Larry answers here.

Have Social Security questions of your own you’d like answered? Ask Larry about Social Security here.


Why Does Social Security Require Ten Years Of Marriage To Get Benefits From An Ex?

Hi Larry, Why is there a requirement of ten years of marriage to qualify for Social Security ex spousal benefits? I was married for nine years and my ex has substantial wealth. Can I appeal the ten year requirement? What about hiring an attorney to appeal? Thanks, Lynn

Hi Lynn, In the original Social Security law that established divorced spousal benefits, the duration of marriage requirement was 20 years. Congress reduced the requirement starting in 1979 to 10 years, but they haven’t changed the rule since then. I have no idea why they settled on a period of 10 years.

You could file a claim for divorced spousal benefits and then file an appeal if your claim is disallowed, but the 10 year duration of marriage requirement is part of the law. To win your appeal, you would almost certainly have to go through the various appeal steps and then file and win a civil suit in federal court.

That seems very unlikely to me, but you may want to discuss it with an attorney. Best, Larry


Is It Legal For Social Security To Take My Brother-In-Law’s Disability Benefits To Repay The Unemployment He Qualified For?

Hi Larry, I helped my brother-in-law, who is self-employed part time with a residential cleaning business, obtain unemployment in Tennessee when the pandemic started. All his jobs asked him to not clean their homes until the pandemic was over. He was approved for and received the $600 per week plus Tennessee unemployment benefits.

Because of his age, 64, and a heart condition he has endured for decades, he had applied for disability before the pandemic started. In August he was told he was put on Medicaid and received $451 for disability. Then in October the disability amount was reduced to $79 because he was told he should never have received unemployment and they were applying all but $79 of his disability to repay unemployment.

He had no plans to quit working, but could not work any more than he was, so he qualified for unemployment. Is that legal that they are taking his disability to repay unemployment he qualified for? How can he fight it? Thanks, Tom

Hi Tom, Receiving unemployment benefits wouldn’t have any negative impact on Social Security disability (SSDI) benefits, so if that’s the only type of benefit your brother-in-law receives then he shouldn’t have been overpaid due to receiving unemployment insurance.

However, if your brother-in-law receives Supplemental Security Income (SSI) benefits, those benefits would be offset basically dollar for dollar by the amount of any unemployment benefits he collects. SSI is a needs based program intended to supplement the income of people who are disabled, blind, or age 65 or older, and who have little or no other means of self-support.

I don’t have enough information to know whether or not your brother-in-law was improperly paid any benefits, but he could file an appeal with Social Security if he disagrees with the decision they made. Best, Larry


Will My Survivor Rate Still Be Reduced If I Earn Too Much To Receive Any Reduced Benefits?

Hi Larry, I filed for survivor’s benefits early at 62 in 2019 because I was told I needed to start the process in the US in order to claim a survivor’s benefit due from some work abroad in our earlier married years. It turns out that was not true, but I discovered it too late to withdraw my application.

In any case, my benefits have been suspended from the beginning because I earn well over the earnings limit, so I have not been paid anything to date.

If I continue to work and earn above the limit until my FRA, will the benefit still be reduced? Am I correct that they will restore the full amount since I haven’t been paid any of the early survivor benefits? I have found conflicting information about whether the recalculation will be immediate or the full amount will be restored over a number of years, and how many years that is.

I plan to claim the survivor benefit and defer my own benefit to 70. I am concerned I will lose out on what would have been the full amount. Thanks, Kaye

Hi Kaye, If you earn too much to actually be paid any benefits until you reach full retirement age (FRA), Social Security will remove the reduction for age that was initially applied to your benefit rate for filing early.

That reduction removal would be effective for your benefit payment for the month you reach FRA, but the rate adjustment won’t actually be processed immediately. However, when the rate adjustment does get processed, Social Security will pay you any back pay that you have coming in a lump sum.

Alternatively, you could request to withdraw the claim that you previously filed and then reapply for survivor benefits at a later date. Social Security requires withdrawals for Social Security retirement benefits to be filed within 12 months of the claimant’s first month of benefit entitlement, but as far as I know that policy doesn’t apply to survivor benefit claims. This would also require repaying any benefits you may receive before withdrawing.

If you do withdraw though, you’ll want to be sure to reapply for your survivor benefits as soon as your earnings would permit at least some benefits to be payable. Assuming that your own Social Security retirement benefit rate will be higher than your survivor rate, your best strategy would likely be to claim your survivor benefits as soon as your earnings would permit payment of at least some benefits, even if that’s before FRA. You could then file for your own higher benefits at 70.

However, if you’re absolutely certain that your earnings will be high enough to prevent payment of any survivor benefits prior to the month you reach FRA, it would probably be easier not to withdraw and then reapply later. My company’s software — Maximize My Social Security or MaxiFi Planner —could help you determine your optimal filing strategy. Social Security calculators provided by other companies or non-profits may provide proper suggestions if they were built with extreme care. Best, Larry


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