Getting Disability if You're the Divorced Spouse of a Disabled Worker

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Divorced spouses are often entitled to SSDI benefits when their ex-spouse begins to collect disability benefits (specifically, SSDI, which stands for Social Security disability insurance), or sometimes after a disabled ex-spouse dies.

If you were married for at least ten years to a former spouse who has become disabled and is now entitled to SSDI benefits as the result of a disability, you may be entitled to a monthly benefit check as well. When you collect Social Security benefits based on another person’s Social Security earnings record, the benefits are called auxiliary benefits. The vast majority of auxiliary benefits are paid to wives and ex-wives; few husbands and ex-husbands receive an auxiliary benefit.

Eligibility for Divorced Spouse’s Benefit

If your ex-husband or wife became disabled, either before, during, or after the marriage, and he or she earned enough Social Security credits to be entitled to SSDI, as a divorced spouse, you are benefits if you fit into either of these categories:

  • You, the divorced spouse, are 62 years old or older and were married to the disabled worker for at least ten years.
  • You, the divorced spouse, care for your ex-spouse’s child or children, who are under age 16 or disabled. Note that if the disabled child is over age 22, the child must have been disabled since before age 22. This is sometimes called the mother’s or father’s benefit.

If you remarry, your auxiliary benefits will end. In addition, if you become eligible to receive Social Security benefits (either retirement or disability benefits) on your own record, and the amount you are eligible for is higher than your auxiliary benefit, your auxiliary SSDI benefit will end.

What If the Disabled Spouse Is Not Collecting Benefits?

If your disabled ex-husband or ex-wife hasn’t yet filed a disability claim for SSDI, the rules are a bit more complicated. You can collect SSDI only if both you and your ex-husband or ex-wife are 62 years old or older, you were married at least ten years, and you have been divorced for at least two years (although this two-year period may be waived if the disabled spouse was eligible for disability benefits before the divorce). This is true as long as your disabled spouse is eligible for SSDI under the medical disability rules; in certain circumstances, the disabled spouse may not need to be eligible under the non-medical eligibility rules. Specifically, the disabled spouse may be allowed to make more earnings than would be allowed under a claim for his or her own disability benefits.

Eligibility for Divorced Spouse’s Survivors Benefit

If your ex-husband or wife has died but was collecting or entitled to collect SSDI disability benefits at death, you may be able to collect a survivors benefit. A surviving divorced spouse is entitled to SSDI benefits in the following circumstances:

  • The surviving divorced spouse is 60 years old or older.
  • The surviving divorced spouse is disabled and between 50 and 60.
  • The surviving divorced spouse is eligible for the mother’s or father’s benefit (see above).

If a surviving divorced spouse gets remarried before age 60, Social Security benefits will be denied (unless the spouse was between 50 and 60 and disabled at the time of marriage). After age 60 (or age 50 if disabled), the Social Security Administration (SSA) will ignore the marriage and continue to pay SSDI benefits.

Amount of Spousal Disability Benefits

A divorced spouse generally receives 50% of the disabled worker’s primary insurance amount (the amount of his or her monthly SSDI check). However, this amount is reduced if you collect it before reaching full retirement age. Also, if the divorced spouse is collecting a mother’s or father’s benefit and the disabled worker’s children are collecting SSDI benefits at the same time, the divorced spouse’s benefit can be reduced. The total of the divorced spouse’s benefit and the children’s benefit cannot be greater than the maximum family benefit, which is generally 150% of the deceased worker’s monthly SSDI benefit.

Note that the benefits paid to a divorced spouse based on being over 60 or disabled are not counted toward the maximum family benefit and won’t affect a current spouse’s or child’s benefits. A divorced spouse’s benefit is counted toward the maximum family benefit only when the divorced spouse is receiving an SSDI benefit based on being a parent of a child under 16 or disabled.

A surviving divorced spouse's benefits are usually more, and vary between 75% and 100%, depending on the divorced spouse's age and whether he or she takes care of minor or disabled children. Here are the rules:

  • A mother or father taking care of a minor or disabled child will receive 75% percent of the deceased worker’s PIA (primary insurance amount--the monthly disability amount).
  • An ex-husband or ex-wife between age 60 and full retirement age (66 or 67) will receive 71-99% percent of the deceased worker’s PIA.
  • An ex-husband or ex-wife who is 66 or 67 or older will receive 100% of the deceased worker’s PIA.

Applying for Spousal Disability Benefits

If your ex-husband’s disability claim, or ex-wife’s disability claim, has already been approved, you can call the Social Security Administration (SSA) at (800) 772-1213 to set up an appointment to apply for the divorced spouse’s SSDI benefit. You must provide the SSA with your birth certificate, your marriage certificate, your divorce papers, your Social Security number (and that of the disabled worker), and your bank’s routing information for direct deposit. If you are applying for a survivors benefit, you will also need to provide a death certificate or other proof from the funeral home proving that your ex-spouse is deceased.

If your ex-husband or wife has not yet filed for disability but is medically eligible due to a disability, you may need the help of a Social Security disability lawyer to help apply for your SSDI benefit.

This article is provided for informational purposes only. If you need legal advice or representation,
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LA-NOLO6:DRU.1.6.5.20141111.29342