On 10-27-26, the Social Security Administration posted a reminder that a marriage lasting at least 10 years can entitle a divorced person to benefits on a former spouse’s work record. It followed up on 10-29-26 with a post on survivor benefits. Neither post changes the law, but the reminder is worth passing along. Bowling Green State University researchers found that about 15% of Americans age 65 and older were divorced in 2022, up from 5.2% in 1990. That figure measures marital status, not the annual divorce rate.
Why does it matter to your clients? Think about two groups. A client divorced years ago may be missing retirement income because nobody ever looked at the former spouse’s record. A client divorcing now has a longer list: IRA transfers, RMDs, an appreciated home, Medicare premiums, and estate documents. Those tax consequences last long after the decree.
The 10-year Marriage Rule
A divorced person generally can claim on a former spouse’s record if the marriage lasted at least 10 years, the claimant is unmarried and at least 62, and the other eligibility requirements are met. The benefit tops out at 50% of the worker’s primary insurance amount (PIA) at full retirement age (20 CFR §404.333), and claiming early reduces it.
The former spouse does not have to have filed. If the worker is at least 62 and the couple has been divorced for at least two continuous years, the claimant can file on that record anyway, assuming the other requirements are met. This does not produce two full benefits. A claimant entitled to retirement benefits on their own record gets that benefit first, plus a spousal supplement to bring the total up to the higher amount.
Reality Check: Mary, 67, was married to John for 25 years. John’s PIA is $3,600 a month. Mary’s own PIA and retirement benefit are both $1,200. If she meets the other requirements, her total could rise to $1,800 a month: her $1,200 plus a $600 divorced-spouse supplement. That is $7,200 more a year, before income tax, and it may turn up only because someone asked about John’s record. Ask sooner rather than later, because retroactivity on an unreduced claim is limited to six months (POMS GN 00204.030).
Older clients may have one more option. Someone born before 1-2-54 who has reached full retirement age may be able to file a restricted application, taking only the divorced-spouse benefit while delaying their own retirement benefit. Anyone born on or after 1-2-54 cannot use it.
What Happens When the Former Spouse Dies?
Check again at this point, because the survivor rules are different. With a marriage of at least 10 years, a client may qualify for survivor benefits, generally starting at age 60, or 50 with a qualifying disability. Remarrying before 60 generally affects eligibility; remarrying after 60 generally does not. Special rules apply to disability and child-in-care situations.
Survivor benefits can reach 100% of the deceased worker’s applicable benefit, depending on claiming age and other factors, though again the client does not collect two full benefits. A client already drawing retirement benefits should still take a fresh look after a former spouse dies. Neither benefit reduces what the worker’s current spouse or other eligible family members receive.
Taxing the Benefit
More Social Security does not always mean the same increase in spendable income. Under §86, the taxable portion depends on provisional income and filing status, and up to 85% of benefits can be taxable. A divorced client may also have lost the advantages of filing jointly. Run the after-tax numbers, including the effect on other income-sensitive provisions, rather than looking only at the gross benefit.
Dividing Retirement Accounts
A traditional IRA, a Roth IRA, and a taxable account can show the same balance and be worth very different amounts after tax. How the IRA moves matters too. Under §408(d)(6), transferring an IRA interest to a spouse or former spouse under a decree of divorce or separate maintenance, or a written instrument incident to the decree (§121(d)(3)(C)(i)), is not a taxable transfer. Taking cash out and paying the former spouse does not work, as the taxpayer in Kirkpatrick, T.C. Memo. 2018-20, learned.
Reality Check: Robert, 72, must transfer $400,000 from his traditional IRA to Susan, 69, under their divorce decree. A direct transfer under the decree creates no current income for Robert. If he instead withdraws the $400,000 and writes Susan a check, the taxable portion lands on Robert’s return.
Employer plans work differently. A qualified domestic relations order (QDRO) under §414(p) can assign plan benefits to a former spouse, and certain distributions can be rolled over (§402(e)(1)). With older clients, also pin down which RMDs are already due or distributed, because an RMD cannot be rolled over.
The House
Section 1041 generally means no gain when spouses transfer property incident to divorce, but the recipient takes the transferor’s basis (§1041(b)(2)). That can leave a large gain for later. A qualifying sale on a joint return for the year of sale can exclude up to $500,000 under §121(b)(2)(A). A qualifying unmarried owner generally is limited to $250,000, so former spouses who sell after the divorce each look to their own limit on their share. Read the ownership and use rules for divorced spouses in §121(d)(3)(A) and (B) carefully.
Reality Check: A couple’s home has an adjusted basis of $200,000 and would sell for $1 million, an $800,000 gain before selling costs. If they file jointly for the year of sale and qualify for the $500,000 exclusion, $300,000 is taxable. If one spouse takes the house and later sells as an unmarried owner with a $250,000 exclusion, $550,000 is taxable. Timing, ownership, use, and the special divorce rules will determine the actual result.
Medicare Premiums
The income-related monthly adjustment amount (IRMAA) on Part B and Part D premiums is generally based on modified AGI from two years earlier. Moving from joint to single filing status can push a client into a higher premium bracket. If divorce reduced the client’s income, the client can use Form SSA-44 to request a new determination based on the life-changing event. The request does not guarantee a lower premium; the facts and projected income matter.
Filing Status, Alimony, and Estate Plans
Marital status on December 31 generally decides whether the client can file as married that year (§7703(a)(1)). Alimony under instruments executed after 2018 is not deductible by the payer or taxable to the recipient; older instruments may keep the old treatment unless modified under the statutory rules (P.L. 115-97, §11051). The settlement should also cover withholding, estimated payments, carryovers, and liabilities on earlier joint returns.
Do not assume the divorce updated the client’s documents. Beneficiary designations, revocable trusts, powers of attorney, and health care directives may no longer reflect what the client wants. State revocation rules vary and federal plan requirements can complicate things, so work with the client’s attorney on these.
Tax Practitioner Planning
Add one question to the next tax appointment: Was the client ever married to someone for at least 10 years, and has anyone checked whether that record supports a larger benefit? Also ask whether a former spouse has died, since the survivor rules differ. A divorce from decades ago can still affect retirement income today.
For a client negotiating a divorce now, compare after-tax values before the settlement fixes the division. A $400,000 IRA, a $400,000 Roth IRA, and $400,000 of home equity will not necessarily provide the same retirement resources. Go through Social Security, RMDs, the home-sale exclusion, Medicare premiums, and estate documents before the parties sign, while the deal can still change.
Sources
- SSA, Social Security Benefits for Divorced Spouses (10-27-26)
- SSA, Social Security Benefits for Surviving Spouses (10-29-26)
- POMS RS 00202.005, Divorced Spouse (10-21-26)
- POMS RS 00202.020, Spouse’s Benefits, Payment
- POMS GN 00204.030, Retroactivity; 20 CFR §404.333
- SSA, Who Can Get Survivor Benefits
- Loo and Brown, Marital Status Distribution of U.S. Adults Aged 65 and Older, 1990-2022 (2024)
- IRS Pub. 504
- IRS Pub. 523
- IRS Pub. 915
- Form SSA-44
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