Social Security survivor benefits for spouse of expat - some questions

[maikeru]

Here's what I'm trying to do and what I found out, but would like to confirm.

I'm a U.S. citizen and permanent resident of Japan, having lived here 40 years. I live with my same sex partner of more than 20 years. While I'm eligible for U.S. social security benefits (I'm 67 now) I have not started taking retirement benefits yet. Since I'm still working, I thought I would try to wait until I turned 70 for maximum benefits. I'm lucky that even though I've been here so long I've managed to accumulate enough credits so I can get benefits which would be helpful. Also, even though I have national health insurance in Japan, I signed up for Medicare Parts A and B when I turned 65, in case I should ever need treatment in the U.S. - like on a visit.

What I'm trying to do is this: I would  like to ensure that my partner receives social security survivor benefits when I eventually pass away. He has never been to the U.S. And we cannot marry in Japan. My benefits would be of great assistance to him after he retires and if I'm gone. He's 10 years younger than me, and is still working.

After checking all over the place, including reading social security info, it seems that this is possible:

1. I can remotely marry my partner in (believe it or not!) the state of Utah which has become very open about allowing this over the last few years (see https://www.nytimes.com/2021/09/17/style/utah-county-weddings-virtual.html and https://www.courtly.com/resources/how-to-get-married-online-in-utah-step-by-step-guide).

2. While most foreign spouses of U.S. citizen must have resided in the U.S. for 5 years to become eligible for survivor benefits, there are a handful of exceptions, including Japan (see https://secure.ssa.gov/poms.nsf/lnx/0302610010).

"The dependent/survivor does not have to meet the 5-year residency requirement because they are a citizen and resident of a treaty country which meets the alien exception code."

3. Because of treaties, Japan also seems to be an exception to the discontinuation of survivor benefits to non-citizens after 6 months outside the U.S. rule (see https://www.ssa.gov/pubs/EN-05-10137.pdf and https://secure.ssa.gov/poms.nsf/lnx/0302610025#:~:text=Section%20202(t)(11,parent%20of%20the%20NH%2C....

"Since you are a resident of one of the countries with which the United States has a Social Security (Totalization) Agreement, your payments will continue as long as you are a resident of an International Social Security (Totalization) Agreement Country."

So from my checking, I think I can go through a remote marriage in Utah and as long as we are married at least 9 months my partner will be eligible for full survivor benefits when I eventually pass on.

In addition, it also seems that when we've been married for 10 years that my partner, who is not otherwise eligible for his own social security benefits, can receive spousal benefits. At that point he will be at least 68 years old, so his own benefits would match my own, and if I were to pass away his benefits would switch to spousal survivor benefits

Is all this correct? Any way to confirm for sure?

I did try the social security screening tool, and it seemed to confirm this as well, except it was a little unclear if I already have to be receiving benefits already when a survivor claim is made.

Also it was unclear what level of benefits my partner would be eligible for depending on his age and so on.

I did try calling Social Security. After listening to several minutes of recordings about this and that it said, "Your wait time is approximately 54 minutes." I gave up and hung up. If it's that hard to get through by phone I felt unsure about receiving concrete info from a rushed/busy operator that could be used later on about this.

Any info would be helpful.

I'm also thinking the best thing, if reasonably priced, would be to get confirmation one way or another from a lawyer who specializes in this sort of thing. And maybe even making a will that clarifies my intentions, or at least establishes an executor to help my partner deal with social security when the time comes.

Thanks.

[fffred · Accepted solution]

Hello @maikeru 

My hat is off to you for the outstanding research you've done. I accept everything that you have reported. I even learned something new about the Alien Nonpayment Provisions and the exceptions... the possibility of an exception is very important and I was not aware of this at all. It really is exciting to learn of these, thank you.

Some comments:

You do not need to have been collecting benefits for the spouse to then receive survivor's benefits.

You said "so his own benefits would match my own," Normally spousal benefits are 50% of your full retirement age (FRA) benefit. Spousal benefit will be reduced as well as your own should you take an early retirement (which it sounds like you won't). Spousal benefit will also be reduced should they take this benefit earlier than their own FRA. I'm thinking that "match my own" means that the benefits are the same, which they won't be, based on these points.

And "if I were to pass away his benefits would switch to spousal survivor benefits". This is correct, with some points to add: (i) Note that spousal retirement benefit does not gain an increase due to any "delayed retirement credits" (DRCs) that you will likely have (for not taking SS until after your full retirement age). But if you predecease him his spousal survivor benefit will include those DRCs. (ii) Probably immaterial for your situation, spouses who have their own SS earnings record can postpone either their own benefit or their survivor benefit until a later age (with the likelihood of getting larger benefits) but spouses who do not have their own earnings record and are collecting spousal benefit when their spouse passes are automatically converted from spousal to survivor, without the option to postpone the survivor benefit (this scenario is relevant to my own spouse).

I have a heavy reference tome written for lawyers about Social Security but even that does not have anything to say about alien (foreign) survivors. So this is really niche ground you are getting into.

I second the idea of possibly discussing with a law firm experienced with Social Security retirement issues. You might ask questions at some other forums that see more traffic about SS issues; I'd suggest Reddit r/socialsecurity and the Bogleheads forum. And possibly any number of expat forums.

I also suggest researching at Professor Larry Kotlikoff's site "Ask Larry" for any relevant "Q & A's". The site is https://maximizemysocialsecurity.com/ask-larry-questions-and-answers. I used a site-specific Google search to search for all discussions including the word "foreign" just as a for-instance and got a lot of hits. There may be some useful information in there.

Oh, and let me add. I was just reading last night about Canadian citizens/residents being hit with the WEP rules due to their receiving both a Canadian public pension and Social Security. This might impact you as well if you will receive a Japan-based pension.

Good luck with this. Should you come to any further resolution on this please let us know here. It's interesting!

[maikeru]

Hello, fffred. Thanks very much for your detailed reply.

Good to confirm about not having to already be collecting benefits in order for my spouse to collect survivor benefits. 

It's also good to confirm about the amount of spousal (not survivor) benefits. Actually, I was surprised to read that those existed at all. It sounds like a generous "bonus" benefit. At any rate, it sounds like he would not qualify for those until 10 years after marriage, at which time he will be 68 years old already, which would be FRA.

As far as getting in touch with a law firm, I'm actively looking for one. At the minimum, in addition to confirming things, it would seem a good idea to designate an executor who can help my partner apply for benefits when the time comes. 

I'll do more research at the other places you mentioned as well. I'd like to get this done quickly. Those Utah remote weddings seem legit. At least according to the NY Times. It's very interesting how that worked out. 

Regarding dual pensions, as things worked out I actually don't qualify for a Japan-based pension. For various reasons, including being paid by a U.S. employer over these years, I was never fully in the Japan pension system. That actually turned out to be a good thing because I've just recently found out how very low the pension benefits here are. And they tend to go down over time because instead of being based on cost of living, the government here takes into account the decreasing population and increasing aging population and to avoid an extra burden on the younger working population reduces pensions as time goes by. It's a problem. Unfair to people who contributed into the national pension system. So I was interested in helping protect my partner in that regard.

Thanks very much!

[fffred]

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Regarding dual pensions, as things worked out I actually don't qualify for a Japan-based pension. For various reasons, including being paid by a U.S. employer over these years, I was never fully in the Japan pension system. That actually turned out to be a good thing because I've just recently found out how very low the pension benefits here are. And they tend to go down over time because instead of being based on cost of living, the government here takes into account the decreasing population and increasing aging population and to avoid an extra burden on the younger working population reduces pensions as time goes by. It's a problem. Unfair to people who contributed into the national pension system. So I was interested in helping protect my partner in that regard.

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That is interesting how the Japanese pension operates. I'll have to mull that over. Though I can see the point about not adding extra burden on the younger working population ...as you likely know, SS here has funding issues coming up. And there are more and more retirees being supported by a lower proportion of workers.

[fffred]

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@maikeru wrote:

It's also good to confirm about the amount of spousal (not survivor) benefits. Actually, I was surprised to read that those existed at all. It sounds like a generous "bonus" benefit. At any rate, it sounds like he would not qualify for those until 10 years after marriage, at which time he will be 68 years old already, which would be FRA.

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Hello!

Spousal benefits can be obtained after only one year of marriage. See this AARP article https://www.aarp.org/retirement/social-security/questions-answers/spouse-social-security.html.

There is a 10 year rule that applies to surviving divorced spouses. (page 2 in this SSA booklet https://www.ssa.gov/pubs/EN-05-10084.pdf). 

I recall a rule that the marriage must be at least for 9 months for a survivor to obtain benefits. Oddly, I find this rule using Google but it's not listed in that SSA pdf booklet. This AARP page does mention this rule and speaks to same-sex couples, this may be useful https://www.aarp.org/retirement/social-security/questions-answers/same-sex-couples-social-security/

Sounds like you have a good plan and are ready to execute.

Ciao!

[maikeru]

Thanks for clarifying about the requirement for spousal benefits being just after 1 year - as long as the spouse is at least 60. 

I guess I should mention all this to my partner sometime soon. 🙂