Tom McCutcheon – Attorney at Law
Q: I was married for 7 years and had two children with my ex-husband. During the marriage I did not work very much but he had a good full time job. I am seeking social security and was told that I could draw off my ex-husband’s earnings, but have been told by someone at social security that I can’t and will only qualify for SSI. Can I draw off my ex-husband for social security?
Lisa
Athens, AL
A: The Social Administration has very strict rules about when one person can use another person’s lifetime earnings account to obtain social security benefits.
Adult children with disabilities that manifested themselves before age 22 can draw off of a parent’s earnings account. The Social Security Judge will require proof of disability before age 22. Occasionally this will consist of finding school records from special education classes or even report cards from a school for the deaf or blind. I have seen cases where 50 year old people who were drawing SSI (which is a needs based program and pays around $700 a month) were able to go back and prove that they had a disability that existed before age 22 and double their monthly benefit amount by drawing off of a parent’s earnings record.
The minimum amount of time for a marriage to exist before one spouse could draw off another’s earning record is 10 years. My understanding is that a widow or widower, age 50, who is disabled, can draw if they were married for more than 10 years and their spouse died within the last 7.
After age 60 different rules of social security apply for one spouse to draw off a former spouse’s earnings record but again this requires a minimum of 10 years of marriage. My understanding of the rules is that earning records can never be combined and you elect the higher earnings record for the largest monthly benefit obtainable. For instance if you had a husband that had a low earnings record and a wife that a high earnings record, the low earning spouse at retirement would elect one or the other (the higher) to base their social security retirement on.
Based on my understanding of the rules, 7 years of marriage is not long enough for you to draw benefits from your former husband’s social security account.
Buckle up and drive safely.
McCutcheon & Hamner, P.C.
2210 Helton Drive
Florence, Alabama 35630
Telephone: 256-764-0112
Facsimile: 256-764-1124
