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Social Security Widow Or Widower’s Benefits And Exceptions

On Behalf of | May 24, 2018 | Wills, Trusts, Estate Planning and Administration

If your spouse has passed away, you can still receive retirement benefits based upon your spouse’s earnings record as long as they would have been eligible to receive benefits themselves. If you are at least 60-years-old and unmarried, you can receive widow or widower’s benefits that amount to the full benefit your spouse would have received upon reaching their own retirement age. Many people do this because their deceased spouse’s benefits are higher than their own retirement benefits. You can either receive one or the other though, you cannot add both your benefits and your deceased spouse’s benefits together to make a higher benefit amount.

One issue some people run into is that you must have been married to your spouse in order to be eligible to receive her benefits as a widower.

Another issue some people run into is that you must have been married to your spouse for at least 9 months before she passed away in order to be eligible for widower’s benefits. If you were newly married and had not reached that 9-month threshold, you will be denied widower’s benefits.

One way you can try and get around these two hurdles is to prove to the Social Security Administration that you and your deceased spouse were married by common law under the state in which you reside. For more information on common law marriage in New Hampshire, please see my blog article “Common Law Marriage In New Hampshire May Not Be What You Think.”

Massachusetts does not recognize common law marriage, so that is not an option for Massachusetts residents.

For those who do not qualify for common law marriage or whose state does not recognize common law marriage, the Social Security Administration offers four exceptions to the 9-month marriage duration requirement in order to receive widower’s benefits.

One exception to the 9-month marriage duration requirement is if your spouse’s death was accidental, which may under certain circumstances include a death after surgery. Your spouse would have been reasonably expected to live for 9 months, yet she died of an accidental death as explained in the Code of Federal Regulations and in the Social Security Administration’s Program Operations Manual System (POMS).

The three other exceptions to the 9-month marriage duration requirement are that your spouse would have been reasonably expected to live for 9 months, yet she died in the line of duty; your spouse would have been reasonably expected to live for 9 months and you had been previously married for at least 9 months; and that your spouse was previously married to an institutionalized spouse that prevented her from marrying you, so long as the institutionalized spouse remained institutionalized until the time of his death and you married your spouse within 60 days after the institutionalized spouse’s death.

If you have been denied Widow or Widower’s benefits through the Social Security Administration, an attorney may be able to assist you in reversing that denial. Remember that you have only 60 days to appeal a decision made by the Social Security Administration, so be sure to act quickly if you need assistance.

Andrea Nelson is an attorney at Hamblett & Kerrigan who focuses her practice in the area of estate planning, including wills, trusts, health and financial powers of attorney.  Attorney Nelson can be reached at [email protected].

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