My same sex partner and I married in July 2011 after NY began recognizing same-sex marriages. At that time she was age 66 1/2 and was collecting social security spousal benefits on the account of her former husband to whom she had been married for more than 10 years. She called social security to advise of our marriage and was told, "no need to do anything because we don't know how we're going to handle these matters." Following the Obergfell decision, she telephoned again and was told "nothing to do yet; we're figuring out how to handle these situations." She continued to collect on her former spouse's account until six months after Obergfell, when she reached age 70 and began collecting on her own account.
I have just reached age 66 (full retirement age) and wish to collect spousal benefits on her account but am concerned that SSA will now retroactively penalize her for following their advice and continuing to collect on her former spouse's account following our marriage. Should I be concerned? Should I forego spousal benefits and collect on my own account when I reach 70?
I'm assuming that your spouse's ex was still living when you and she got married. Otherwise, there wouldn't be an issue since a remarriage after age 60 doesn't terminate entitlement to surviving divorced spousal benefits. Furthermore, we would never recommend withholding material information from Social Security or giving them false or misleading information, since that could subject you to penalties such as fines and/or imprisonment.
That said, I can understand your concern since a remarriage does result in the termination of divorced spousal benefits in most cases. However, forgoing claiming spousal benefits while waiting to claim your own benefits at age 70 wouldn't prevent Social Security from retroactively deciding that your spouse's divorced spousal benefits should have been terminated when you and she married, in which case they could ask her to repay the resulting overpayment of benefits. Should that happen, though, it sounds like she would have a good case for waiver (forgiveness) of the overpayment on the grounds that she reported her remarriage and was told that she didn't need to do anything.
All I can really tell you is that your not filing for spousal benefits won't guarantee that Social Security wouldn't come back later and ask your spouse to repay her past divorced spousal benefits. And, if you forego filing for spousal benefits now and decide to file for them in the future you could only claim benefits retroactively for a maximum of 6 months from your month of filing. It's true, though, that your filing for spousal benefits could call attention to your spouse's situation that may otherwise go overlooked. Bottom line, I can't really advise you what to do in your circumstances, but hopefully the information I listed above will help you make your decision. You may also want to strongly consider using our maximization software to confirm your optimal filing strategy and to determine how much you'd likely be forfeiting by not filing for spousal benefits.