What You Need to Know About Pension & Social Security in a California Divorce
Government pensions and Social Security financially benefit individuals after retirement. Here’s information regarding whether a spouse can claim pension/social security in a divorce.
A spouse can claim pensions and Social Security in a California divorce. Since California is a community property state, all marital property is divided 50/50. Pensions are considered community property under California law. However, Social Security benefits are protected by federal law and, therefore, are not considered community property. For this reason, claiming a pension versus claiming Social Security benefits differ under California law.
How Long Until a Spouse Can Claim Your Pension/Social Security in a California Divorce?
There are different requirements for a spouse to claim pensions or Social Security in a California divorce.
Pension: If retirement benefits present themselves within a California marriage, an individual is also entitled to their spouse’s pension. This is due to the fact that it is considered community property. Thus, the pension is divided 50/50 upon divorce. There is no minimum length of marriage for a spouse to claim rights to the employed spouse’s pension.
Related: How to Calculate Pension Value in a California Divorce
Social Security: Social Security benefits are non-transferable, nor can they be assigned by the employed individual. However, spouses are entitled to certain derivative rights to claim some Social Security benefits upon divorce. These include:
- The marriage lasted for 10 years or longer (from the date of the marriage to the date of termination of marital status)
- The employed spouse receiving the benefits is currently unmarried
- The employed spouse receiving the benefits is age 62 or older
- The ex-spouse is also entitled to receive social security benefits from their place of employment
- The benefit the ex-spouse is entitled to receive based on their own work is less than the benefit the employed spouse would receive based on the employed spouse’s work
- The ex-spouse does not remarry before the age of 60
If all of these requirements are met, the ex-spouse could either choose to receive all of their own Social Security benefits or choose to receive half of their former spouse’s Social Security benefits. However, the ex-spouse cannot receive both.
Related: How to Keep Your Pension in a California Divorce
If the requirements mentioned above are met, can a spouse collect Social Security benefits from a former California marriage if they choose to remarry?
In general, a spouse cannot collect Social Security benefits from a California divorce if they decide to remarry before the age of 60. However, suppose that later marriage occurs after the spouse turns 60 years old and the marriage ends in death, divorce, or an annulment. In that case, the spouse may be eligible to collect Social Security benefits from the former California marriage.
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If you or a loved one have any more questions about whether a spouse can claim your pension/Social Security in a California divorce, contact us. Get your free consultation with one of our Property Division Attorneys in California today!