Can Divorce & Pre-nups Change SS Eligibility?

[mickstuder]

My wife and I have been married over 38 years - we were divorced for approx. 1 year during that period - when we remarried my wife wanted a prenup just in case so I signed without a lawyer and without reading it - later on I read it and it says I am uneligible for SS Spousal Benefits

The Question is whether or not - Marriage Contracts - can negate Federal SS Law?

Thanks

[fffred]

@mickstuder 

oh, gosh. I am sorry to hear about this Mick. I was a bit concerned even the other day when I read you were renting someplace. But I recall a photo a few months back of you guys packing up an RV.

Anyway, I doubt that a prenuptial agreement would carry any sway with the Social Security Administration. The rules of Social Security are governed by specific federal laws and regulations, that will likely override any prenuptial agreement.

That is my opinion but I am not a professional. You might search through the "Ask Larry" column at https://maximizemysocialsecurity.com/ask-larry This is Boston University professor Lawrence Kotlikoff, an expert on Social Security. The "Ask Larry" has multiple hundreds of Q&A letters from listeners and readers at many publications.

I have seen quite a few articles or letter writers posing the question "Can I prevent my divorced spouse from collecting on MY Social Security?" I have never seen any version of an answer other than "No, you can't do this". But then no one ever mentioned a prenup.

An ex-spouse getting benefits does not decrease the insured's own SS benefits. In fact, I have pondered how many exes might be on the "payroll" if someone was a serial divorcer and divorced a bunch of women/men after the required 10 years of marriage. I suppose the answer if somewhere around 5 or 6. Maybe 7. Maybe more if they kept that marry/divorce thing going. Based on this rule there was no point in your wife including this supposition in the prenup.

It's an interesting situation though. For you to materially benefit from your wife's SS then your 50% spousal benefit on her account would have to be greater than your own entire benefit (discounting when you took either benefit). And there is that special case that is now phased out where someone born before some year, 1954 was it? Could "file and suspend", then the spouse could collect and let their own benefit grow, say to age 70, whilst the insured did not collect either. In some scenarios that worked well and a lot of people did that.

But it seems that if this was the case, you being better off collecting spousal benefits on her account, then your wife has snipped her own nose off in spite if this actually worked. Because in this case the marital cashflow is reduced by your not being able to take the spousal benefit.

Well, perhaps I misconstrue. Because I assume the clause in the prenup takes effect if there was a second divorce. But the entire thing does not seem enforceable to me.

I'd do some reading. Maybe contact the Social Security Administration and ask them. Then ask an attorney or related expert if you want to pursue.

[fffred]

Larry mentions this https://www.ssa.gov/OP_Home/handbook/handbook.03/handbook-0311.html

from the SSA rules. "When are you entitled to divorced spouse's insurance benefits?"