What If More Than One Person Claims Widow's Benefits On The Same Deceased Husband?

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Oct 5 2016 - 4:30pm

My husband and I were separated for many years but never divorced...(He said he wouldn't sign and 1/2 the time I didn't know where he was and couldn't afford an atty.) He passed away 2 years ago. I found out the night of his death that he remarried in 1995 while we were/are still married..Wife #2 refused/refuses to file an annulment even tho she knows the marriage isn't legal. She found out about 6 years after they were married with a kid that he was still legally married to me. Everyone kept it from me knowing I would file bigamy charges. She listed herself as his spouse on his death cert. What can I do? I am 52. We would have been married 32 years..SS says that she can collect benefits at age 60 because she didn't know he was still married to me at the time of their marriage..

Hi,

Well, that's a question that doesn't come up every day. If you are the legal widow (i.e. validly married and never divorced), then your right to widow's benefits on your husband's record would supersede those of his subsequent 'wife'. If she got married in good faith, though, she may also qualify for benefits based on what Social Security refers to as a deemed marriage. However, her entitlement under that provision would not adversely affect either your entitlement to widow's benefits, nor your benefit amount. This is what the Social Security operations manual says on this subject:

"6. More than one claimant
Where more than one claimant qualifies for widow(er)'s benefits on one ER (see RS 00207.001), each qualifies for a widow(er)'s benefit computed in the usual manner. The benefit of a surviving divorced spouse or, effective 1/91, a legal widow(er) in a legal/deemed or legal/putative simultaneous entitlement situation is not subject to reduction for the family maximum for the first and all subsequent months of entitlement. (See RS 00615.680.) For policy about the family maximum, see RS 00615.684, Benefits When a Legal Spouse and a Deemed or Putative Spouse are Entitled."

Unless you are disabled, you cannot become entitled to widow's benefits at least until you reach age 60. You must also be unmarried in order to be eligible, unless your remarriage occurs after you reach age 60. When you apply, you will need to show Social Security your marriage certificate, along with any documentation you have that would support your certification that neither you or your husband ever obtained a divorce.

If you have enough credits to become entitled to Social Security benefits on your own work record, you will want to investigate your filing options. In some cases, it's best to file for widow's benefits at age 60, and then for benefits on your own account at age 70. In other cases, it's better to file for reduced benefits on your own account at age 62, then for widow's benefits at your full retirement age. You may wish to run the maximization software available on this website in order to help you determine the best option.

Best, Jerry