10 Odd Social Security Rules and Practices

10 Odd Social Security Rules and Practices

Ask Bob: My Husband is Incarcerated; Can I Claim Social Security Spousal Benefits?

Is it possible to claim Social Security benefits if your spouse is imprisoned? Retirement Daily expert Kurt Czarnowski explains who can and can't receive benefits.
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Question

I've been married since October 16, 1982 and am still married. My husband is doing a life sentence for murder first degree; he's been incarcerated since 1999. All our kids are grown. My husband was born April 2, 1960 and he worked for many years.

Can I draw any benefits off him? If so, what? I get SSI, SSDI.

Answer

There are a lot of moving parts here, says Kurt Czarnowski, principal, Czarnowski Consulting, so I guess that the answer to her question of whether she could draw benefits off him is "It depends." Let's start with the basics.

Since she has been married for more than a year, she is potentially eligible to collect spousal benefits based on her husband's work record, explains Czarnowski. “Now, in order to collect something as his spouse, he must be entitled to benefits, and the earliest month that he could collect would be when he turns 62 in April of 2022,” he adds.

Under the law, the Social Security Administration (SSA) is required to suspend the benefits of anyone who is convicted of a criminal offense and sent to jail or prison for more than 30 continuous days. “So, if he were to apply at that point, he wouldn't be able to collect anything himself,” Czarnowski adds. “However, even though the husband couldn't be paid while he is incarcerated, benefits to his spouse can be paid as long as she is eligible.” (See “What Prisoners Need to Know” from the SSA.)

Assuming that he applies for retirement benefits when he turns 62, she would need to be at least age 62, as well, in order to collect a spousal benefit. “Now, there is no indication in the email of her age, but let's assume that she will be 62 or older at that point,” says Czarnowski.

She indicates that she is collecting SSDI benefits, so the spousal portion would be the difference between her SSDI amount and 50% of his full retirement age (FRA) amount. “If her own SSDI benefit exceeds 50% of his FRA amount, then no spousal benefits are due and she will collect based solely on her own work record. However, if her own benefit is less than 50% of his FRA amount, then she will be due the difference as a spousal benefit and it will be added to the SSDI benefit that she is currently collecting,” he explains.

“Remember, though,” Czarnowski adds, “if she is under her FRA, then the spousal amount will be reduced, just as one's own retirement benefit is reduced if claimed prior to FRA. In the email, there is no indication of her monthly SSDI benefit amount, nor her husband's FRA amount.” Of note, if he has been incarcerated since 1999, it's unlikely his own retirement benefit would be all that high, so her own SSDI amount may well exceed 50% of his FRA amount.

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Question

I've been married since October 16, 1982 and am still married. My husband is doing a life sentence for murder first degree; he's been incarcerated since 1999. All our kids are grown. My husband was born April 2, 1960 and he worked for many years.

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