321. When are spouse's insurance benefits not payable?

321.1 When are spouse's insurance benefits NOT payable (or only partly payable)?

Your spouse's insurance benefits may not be payable or may be payable only in part if:

1. Some or all of the worker's retirement insurance benefits are not payable because:

   1. The worker is under full retirement age (FRA), works, and earns more than the exempt amount (see §1803);

   2. The worker works outside the U.S. for more than 45 hours in a month (see §1823);

      If you and the worker have been divorced for at least two continuous years, your monthly benefit is paid without regard to work deductions of the worker. However, effective January 1, 1991, if the worker was entitled to a retirement insurance benefit, in the month before the month of divorce, you are exempt from the two-year waiting period;

2. You are under FRA, working, and earning more than the exempt amount (see §1803); or you are working outside the U.S. for more than 45 hours in a month (see § 1823);

3. You are in the United States (U.S.) for a full calendar month and you are not a U.S. citizen, U.S. national or alien lawfully present in the U.S.;

4. You are an alien who is outside the U.S. for more than six calendar months in a row. For information on payments while you are outside the U.S., see www.socialsecurity.gov/pubs/10137.html;

5. You are an alien living in a country where it is not permitted to mail U.S. Government checks (see §1848). For information on payments while you are outside the U.S., see www.socialsecurity.gov/pubs/10137.html;

6. The worker has been deported or removed from the U.S. and you are an alien who is outside the U.S. (see §1842);

7. You or the worker was granted a tax exemption as a member of a religious group opposed to insurance (see §§1128-1129);

8. The worker is receiving disability insurance benefits that are subject to offset because of the worker's compensation payments (This deduction does not apply to an independently entitled divorced spouse; see §311.) You are subject to deductions if the worker is receiving disability insurance benefits, is entitled to workers compensation benefits, and you have not been divorced for two years. If the worker was entitled to the current disability insurance benefit in the month before the month of the divorce, the two year waiting period is waived; or

9. You are under age 62 and do not have in your care a child of the worker under age 16 or disabled who is entitled to child's benefits.

10. You are entitled, on the basis of your own employment, to a governmental pension (Federal, State, or a political subdivision of a State) not covered by Social Security. Your pension must require offset against the Social Security payment and the exceptions in §1836 do not apply;

11. You were convicted of unruly activities and a court imposed an additional penalty (see §1837);

12. You do not have a social security number and refuse to apply for one; or

13. You are confined within the U.S. to a correctional institution for more than 30 continuous days, as a result of a conviction of a criminal offense or a court of competent jurisdiction issues a verdict, finding or a ruling that declares you are:

    • guilty but insane with respect to a criminal offense;

    • not guilty of such a criminal offense by reason of insanity;

    • incompetent to stand trial under an allegation of a criminal offense;

    • determined to have a similar verdict or finding, with respect to a criminal offense based on similar factors (such as mental disease, mental defect or mental incompetence) and

    you are confined to an institution at public expense for more than 30 continuous days;

    or

    Immediately upon completion of confinement in a correctional institution (confinement in the correctional institution was based on a crime; an element of which was sexual activity), you are confined by court order to an institution for more than 30 continuous days at public expense because you were determined to be a sexually dangerous person or a sexual predator or similar finding.

14. You have an outstanding warrant for a crime or attempted crime that carries a penalty of death or imprisonment for more than one year, or an outstanding warrant for a Federal or State probation or parole violation.

321.2 Do you receive your spouse's benefits if you do not have a child in your care?

If you are a spouse age 62 to full retirement age entitled to spouse's benefits because you have a child in care, you are not paid any benefits for the months that the child is not in your care. You may be paid a reduced benefit, however, if you file a "certificate of election" to receive the reduced benefit for those months in which the child is not in your care. (See §729.)

Note: The benefit of a divorced spouse between ages 62 and full retirement age is not subject to deductions for failure to have a child under age 16 or disabled in care. (See §320.)

(The conditions regarding nonpayment or partial payment of benefits are explained in Chapter 18.)

Last Revised: Aug. 2, 2007