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Are Social Security Spousal Benefits Loopholes Still Open?

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If you receive Social Security benefits, your spouse might also be eligible for benefits. Even if your spouse does not have their own earnings record, they can receive retirement benefits based on your work history. In some cases, your spouse might be able to maximize their benefit by exploring some loopholes surrounding the spousal benefit rules.

However, the Social Security Administration (SSA) has recently closed many loopholes that people were accustomed to taking advantage of. That doesn’t mean that you don’t still have a few options. Keep reading as we give you all the details on the spousal benefits loopholes and tell you which ones are still open.


Social Security Spousal Benefits Loopholes

So, what loopholes exist when it comes to Social Security spousal benefits? There are two significant loopholes you will hear people reference, and we will give you all the details on both. First, you need to understand the basics of how Social Security retirement benefits work to understand the loopholes. You likely already know that your Social Security benefits are calculated using your lifetime earnings record.

You should also know that you will receive 100% of your benefit amount if you start your benefits at full retirement age. Waiting past retirement age to start your benefits can increase your benefit amount because it allows you to accrue delayed retirement credits. This is an important key to fully understanding how these loopholes work. A spouse can also receive up to 50% of the primary beneficiary’s benefit amount as a spousal benefit. Now that you have a basic understanding of the process, here are the details of the loopholes.


Loophole #1. File & Suspend

This loophole involves the higher-earning spouse filing for benefits upon reaching full retirement age but immediately suspending those benefits and allowing the payment to grow by accruing delayed retirement credits. This means that the primary earner will receive a much higher payment when they finally start receiving their benefits — usually at age 70. In the meantime, the lower-earning spouse can receive benefits based on the earnings record of their spouse. These spousal benefits are typically higher than the lower-earning spouse would receive based on their own work record.


Loophole #2. Restricted Application

You might also hear this loophole called a “deemed filing.” This loophole essentially allowed you to collect some benefits now and collect more benefits later. Using this strategy, a spouse could file for spousal benefits upon reaching full retirement age. However, they would restrict their Social Security application to claiming only the spousal benefits. Doing this would accrue delayed retirement credits on their own benefits. Upon reaching age 70 (when their own benefit was maxed out), they would switch from spousal benefits to their own retirement benefit. This allowed the person to receive spousal benefits upon reaching retirement age and then switch to a higher benefit once their own benefit had maxed out in value.


Which Social Security Spousal Benefits Loopholes Are Still Open?

So, which loopholes are still available for you to use? The Bipartisan Budget Act of 2015 closed both of the loopholes mentioned above, with only a few minor exceptions. Here is how Congress closed those loopholes using the Act. First, let’s explore how the File and Suspend strategy was closed.

Under the old law, a person could file for benefits and then immediately suspend them. However, any other benefits based on that person’s earnings record would continue. In effect, this allowed their spouse to continue receiving spousal benefits while the primary earner’s benefit continued to grow. Under the new law, any benefits associated with the primary beneficiary’s account will also stop if they suspend their benefits. So, while a person can still suspend their own benefits, this suspension would also stop any spousal benefits that were being paid.

The new law also does away with the restricted application process or deemed filing. Under the old law, a person was allowed to restrict their application to only one specific type of benefit. This means that they could apply specifically for spousal benefits and wait until a later date to file for their own benefits. However, the new law states that an application for benefits will be considered an application for all benefits that the person might be eligible for. So, if you file an application for benefits, the Social Security Administration will consider that an application for both spousal benefits and your own benefit. You will typically receive the higher of the two benefits, but you cannot come back later and file for the other benefit type.

Although the loopholes have generally been closed, there are still a couple of exceptions that you might be able to take advantage of. When it comes to a restricted application, the restriction only applies to spousal benefits — not survivor benefits or disability benefits. Therefore, you might be able to claim survivor benefits or disability benefits now and claim your own retirement benefits later. In addition, the file and suspend loophole closure does not apply to the spousal benefits of an ex-spouse. Therefore, if you are receiving spousal benefits based on your ex-spouse’s earnings record, you will continue to receive benefits even if your ex-spouse suspends their benefits.


Strategies For Maximizing Social Security Spousal Benefits

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Now that these Social Security loopholes have closed, what are your options for maximizing your Social Security benefit payments? The answer depends on your specific situation. Since most retirees live on a fixed income, they will obviously want their monthly retirement income to be as high as possible. Here are some of the most common situations and what you can do to maximize your benefits.


— Strategy For Married Couples

The best way for married couples to maximize their monthly benefits depends on the earnings history of each spouse. Since the Social Security filing rules for spousal benefits have changed recently, the strategy you use today is likely different from what you may have done a few years ago. If the earnings history of both spouses is relatively equal, it is generally wise for both spouses to wait as long as possible to start their benefits. This allows both spouses to accrue delayed retirement credits and increase their monthly benefit amount.

If one spouse earned significantly more money than the other or if one spouse did not work, then the best idea is for the primary earner to wait until age 70 to claim benefits. This will max out their own retirement benefits and lead to the highest possible payment. Although the spousal benefit maxes out when the spouse reaches full retirement age, this is still the best option for a married couple with a primary earner.


— Strategy For Divorced Spouses

If part of your retirement planning involves receiving Social Security benefits based on the earnings record of an ex-spouse, there are some things you should keep in mind. First, the marriage must have lasted at least ten years, and you must not be remarried (with very limited exceptions). If the divorce occurred more than two years ago, you could claim spousal benefits upon reaching full retirement age (FRA) as long as your ex-spouse is eligible for benefits — they do not need to actually be receiving benefits. If you have multiple ex-spouses, you will generally be able to choose the higher amount.

If you are nearing retirement age and considering a divorce, the best claiming strategy is often to claim benefits before the divorce occurs. Otherwise, you will need to wait until the divorce has been final for two years before you can claim benefits from your ex-spouse’s earnings record, unless your ex-spouse is already receiving benefits.


— Strategy For Widowed Spouses

A widowed spouse may receive 100% of their deceased spouse’s benefits upon reaching full retirement age. However, you can choose to begin survivor benefits as early as age 60 in some cases. Since the restricted application loophole closure does not apply to survivor benefits, it is often beneficial to begin your survivor benefits at retirement age or even sooner while allowing your own retirement benefit to grow. Upon reaching age 70, you can switch to your own retirement benefit and potentially increase your monthly payment.

You should also remember that remarrying after age 60 will not affect your Social Security spousal survivor benefits. You might choose to receive survivor benefits from your deceased spouse’s record and later switch to spousal benefits from your current spouse. You should always contact a financial advisor for assistance with retirement planning if you have any questions about which strategy is best for you.


— Strategy For Late Claimers

For most married couples, waiting to claim your benefits is the best strategy. If one spouse has a significantly higher earnings history, it is wise for the higher earner to delay their own Social Security benefits until age 70. Delaying benefits will lead to a higher monthly payment for the primary earner, although the spousal benefits are calculated using the primary insurance amount. Spousal benefits will not continue to grow, even if you wait past full retirement age to claim them.

If both spouses have a similar earnings history, then it makes sense for both spouses to claim their benefits late. In some situations, it might not be financially feasible for a couple to wait to claim their benefits. However, if possible, both spouses’ waiting until age 70 to claim their benefits will result in the highest combined Social Security check each month.


Social Security Spousal Benefits Eligibility

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Now that you know about the spousal benefit loopholes and ways to maximize your benefit amounts, just when can a spouse claim spousal benefits based on your earnings record? Keep reading as we tell you exactly who can qualify for spousal benefits.


— Married Couples

If you are married, you can qualify for benefits based on your spouse’s Social Security record, even if you have never worked. However, there are a few rules that must be met. First, you must have been married for at least a year. Next, your spouse must already be collecting retirement benefits. Finally, you must be at least age 62 unless you are caring for a minor child. If you wait until full retirement age to start your benefits, you will collect 50% of your spouse’s primary insurance amount. Starting your benefits before full retirement age can reduce them to as little as 32.5% of the primary insurance amount, but delaying the start of your benefits past retirement age will not increase the payment amount.


— Same-Sex Married Couples

Since the Supreme Court ruling in 2015, same-sex couples are entitled to the same benefits as all other couples. The rules for a same-sex couple to qualify for spousal benefits are the same as the rules mentioned above for all other married couples. In addition, the Social Security Administration also recognizes civil unions and domestic partnerships. So, a same-sex couple will be able to qualify for spousal benefits as long as they are “effectively” married.


— Divorced Spouses

The rules for spousal benefits for divorced spouses can get complicated, but we will cover the main points here. First, the marriage must have lasted at least ten years. Next, you must currently be unmarried. If your ex-spouse already receives benefits, you can start your benefits at any time after reaching retirement age. However, if your ex-spouse is not already receiving benefits, you must wait at least two years after the divorce is final to begin receiving your benefits. Your ex-spouse must also be old enough to qualify for benefits, whether or not they are actually receiving them.

If your ex-spouse is deceased, you will follow the rules regarding widowed spouses. In addition, if you have been divorced more than once, you might qualify for benefits under the work history of more than one ex-spouse. In that case, you can select the ex-spouse that would result in the highest payment. You are allowed to choose which spousal benefits you want to collect in that case.


— Widowed Spouses

If your spouse is deceased, you can receive up to 100% of their primary insurance amount in the form of a survivor benefit. You can start this benefit as early as age 60 (even as early as age 50 in some cases), although the benefit will be reduced if you start it before full retirement age. Even if your spouse died before reaching retirement age, you could still collect this benefit upon reaching retirement age. As long as your spouse worked ten years or more, they accrued enough work credits for you to qualify for a survivor benefit.

If you already receive spousal benefits and your spouse dies, you should notify the Social Security Administration right away. You can likely switch from your 50% spousal benefit to a 100% survivor benefit. This switch does not occur automatically, and it is not retroactive. Therefore, it is extremely important that you notify Social Security of your spouse’s death right away.


Calculation Of Social Security Benefits For Spouses

If you are going to apply for spousal benefits, you might be wondering how much you will get each month. The calculation of the spousal benefit is performed using the primary insurance amount of the primary beneficiary. If you wait until full retirement age to start your benefit (67 for most people today), you will receive 50% of your spouse’s benefit amount. So, if your spouse receives $2,000 per month, you can expect to receive $1,000 per month in spousal benefits. However, you can start your spousal benefit as early as age 62.

Starting your benefit early will decrease the amount you receive. You will see a deduction for each month that you start early. Starting your benefits at age 62 can lower them to 32.5% of the primary beneficiary’s benefit amount. In the scenario above, starting your benefits at age 62 could lower your $1,000 spousal payment to around $640 per month. Remember that once you start your benefit, you will continue to receive this amount for life (with the exception of annual cost-of-living adjustments). So, starting benefits early could cost you thousands of dollars over the course of your lifetime.


The Best Time To Claim Social Security Spousal Payments

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So, when is the best time to claim spousal benefits? Generally, the best time to claim spousal benefits is upon reaching full retirement age — assuming that your spouse is already receiving benefits. Waiting past retirement age will have no effect on spousal benefits. You cannot accrue delayed retirement credits and increase your spousal benefit amount.

If your spouse is not already collecting benefits, then you must wait until they are collecting benefits to start your spousal benefits. In some cases, it might make more sense for your spouse to wait until age 70 to start benefits, even if this means delaying your spousal benefits for a couple of years. If you have any questions about the best way to maximize your Social Security benefits, you should consult an experienced financial planner in your area.


The Bottom Line

Social Security spousal benefits loopholes can allow you to maximize the amount of Social Security benefits you receive over your lifetime. However, the loopholes have been mostly closed to prevent people from taking advantage of the system. You can no longer file and suspend your payments while your spouse continues to receive benefits, nor can you file a restricted application for spousal benefits only. The closure of these loopholes does not mean, however, that there are not still ways to maximize your benefits. The method of maximizing your benefits varies depending on whether you are married, divorced, or widowed.


Frequently Asked Questions


When can a woman draw off her husband’s Social Security?

Are you wondering, “When can my spouse collect half of my Social Security?” The answer depends on whether the couple is still married and whether the husband is still alive. If the couple is still married, the woman can generally start her spousal benefits as early as age 62. If the husband is deceased, the woman can start survivor benefits as early as age 50 in some cases. In either case, if the woman is caring for a child under 16, the age limits do not apply. When it comes to divorced spouses, the woman can draw off her ex-husband’s Social Security upon reaching age 62, provided that the marriage lasted at least ten years and the ex-husband is already drawing his Social Security. If he is not already receiving benefits, the woman will have to wait at least two years after the divorce to start receiving benefits.


Can you collect 1/2 of your spouse’s Social Security and then your full amount?

No, you cannot switch from spousal benefits to your own benefits. In the past, this was known as the “restricted application loophole.” You could file an application for spousal benefits only and draw 1/2 of your spouse’s benefit while continuing to allow your own benefit to grow. This loophole has been closed and is no longer an option. Upon filing an application for benefits now, you are applying for both spousal benefits and benefits on your own record. You will receive the higher of the two amounts. You might also be wondering, “Can I switch from my Social Security benefit to a spousal benefit?” The answer is yes, but only if your spouse is not yet receiving benefits when you initially apply. You can later switch to a spousal benefit when your spouse starts their benefits. If your spouse is already receiving benefits, then the deemed filing rule will apply.


Does the Social Security loophole only apply to women?

No, the loopholes apply to both men and women. In some cases, the woman may have been the primary earner. Therefore, the woman may have decided to file and suspend her benefits. Similarly, the man may have wanted to file a restricted application for spousal benefits while allowing his own benefits to continue to grow. However, now that both loopholes are closed, these strategies are no longer an option.


What is the difference between spousal benefits and survivor benefits?

Spousal benefits are received while your spouse or ex-spouse is still alive. You can draw benefits based on the earnings record of your spouse or ex-spouse. However, if your spouse or ex-spouse is dead, you will need to apply for survivor benefits. There is a big difference in the amount of these benefits as well. Spousal benefits are typically 50% of the primary beneficiary’s benefit, while survivor benefits are 100% of that amount. If your spouse dies while you are receiving spousal benefits, you can switch to the higher survivor benefits. However, you will need to notify the Social Security Administration of the death of your spouse. They will not automatically switch your benefits without this notification.


What happens if I die and my wife is still collecting Social Security?

If your wife is collecting benefits based on her own earnings record, there will be no change to her benefits. However, if she is collecting spousal benefits based on your earnings record, then your benefit amount might double each month. She will need to notify the Social Security Administration of your death, and she will need to let them know she wants to switch from spousal benefits to survivor benefits. This could result in a much larger payment to her each month. She can continue to receive survivor benefits for the rest of her lifetime. If switching from her own benefits to survivor benefits would result in a higher payment, she will be allowed to make that switch as well.