ERISA, Pensions and Social Security

Private Pensions

The Employee Retirement Income Security Act of 1974 (ERISA) gives spouses and divorced spouses some rights in a worker’s pension plan. This law requires that pension benefits paid at normal retirement age take the form of a joint and survivor annuity. A joint and survivor annuity is a benefit paid during the lifetime of the worker, with a survivor benefit to one other person, usually the spouse. In order for a divorced spouse  to qualify for survivor benefits, the marriage must have lasted for at least one year. Read the law: 29 USC §1055(a)29 USC §1055(f)

At the time of divorce, a pension may be considered marital property and subject to division, if it was earned during the marriage.  If the parties or the court divide pension assets at the time of a divorce, they do so by creating a qualified domestic relations order (QDRO).

Social Security

Even after you divorce your spouse, you may receive Social Security retirement or survivor’s benefits based on the record of your former spouse if you were married to the worker for at least ten years before a final divorce. However, in order to receive benefits the law requires that you:

  • be at least 62 years old,
  • currently unmarried, and
  • not entitled to higher retirement or disability benefits on your own record.

Read the law: 42 USC § 416(d)

If you remarry, you will lose your rights to the benefits based on your former spouse’s record.  If your former spouse dies you are entitled to survivor’s benefits if you are at least 60 years old and have not remarried before age 60. See also Applying for Social Security Benefits on this web site. Read the law: 42 USC § 402

Railroad Retirement

Tier I benefits under the Railroad Retirement Act follow the same rules for divorced spouses that are described above for Social Security benefits. Read the law: 45 USC § 231

Is this legal advice?

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