Do Survivor Benefits Survive Divorce?

Surviving spouses are eligible for a number of benefits after the death of their spouse.  There are estate tax benefits, such as the marital deduction allowing estate tax-free transfers to the surviving spouse, a simplified probate procedure (the spousal petition), and the list goes on.  Most benefits are available only to surviving spouses who are married at the time the deceased spouse dies.  However, in some cases, surviving former spouses may also receive benefits!

Family law and divorces are not the areas in my wheelhouse, but are nevertheless relevant to the areas that are: namely, estate planning and benefits planning.  In that context, some benefits ought to be secured at the time of the divorce.  For example, although surviving spouses may roll over their deceased spouse’s retirement plan to their own plan, a divorced spouse may not.  A former spouse will be treated as any other beneficiary, if named as a beneficiary of a retirement plan.  Qualified Domestic Relations Orders (QDROs) can allow for tax free transfers between former spouses’ retirement plans incident to divorce.  However, during probate, a similar order based on community interest in the retirement plan will not be considered a “qualified” order.

If you are divorced from a military member, the veteran may elect to have coverage for a former spouse Survivor Benefit Plan (SBP).  The coverage must be elected by the veteran spouse within one year of the divorce.   The benefit may entitle you to a portion of your former military spouse’s retirement, which may be beneficial in the future.  Whether or not you have remarried there are very limited circumstances in which you will be eligible for certain benefits such as VA Aid & Attendance Non-Service Connected Pension Benefit.  Securing SBP coverage, particularly if you will be dependent on alimony, may help cover some of the cost.

Depending on the length of your marriage, you may also qualify for a portion of your former spouse’s social security income.  If you were married at least 10 years, you may receive social security benefits from your former spouse to the extent they exceed the benefits you receive from your own work record.  However, if you are in a new marriage, you generally may not receive social security benefits from your former spouse.  Note that if you are remarried, then the termination of that second marriage may make you eligible again.  And if you were remarried after age 60, the new marriage is disregarded for social security purposes.

It is important to recognize that each of the areas touched upon here: social security, retirement plans, and veterans benefits are very complicated and intensely fact specific.  If you believe your marriage to your former spouse may make you eligible for any type of benefit, speaking with an attorney to evaluate your potential eligibility is essential.  With your attorney’s knowledgeable advice, you will be better equipped to know whether you should invest your time in the process of applying for benefits and to know how to increase your chances of being approved.

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