03 Mar My ex is in prison. Why can’t I get his Social Security?

Q. My ex is in prison, I’m currently receiving what they call spousal benefits, which is only a little over $900 a month. My ex collects nothing because he is in prison. Why can’t I collect the full amount of the Social Security benefits we jointly paid in?
— Trying to understand

A. In short, it’s because of the rules.

Social Security’s rules are complicated to begin with, but there’s an extra wrinkle for a family with an incarcerated member.

Per Code of Federal Regulations section 404.468 (Nonpayment of benefits to prisoners): “No monthly benefits will be paid to any individual for any month any part of which the individual is confined in a jail, prison, or other penal institution or correctional facility for conviction of a felony… however, it applies only to the prisoner; benefit payments to any other person who is entitled on the basis of the prisoner’s wages and self-employment income are payable as though the prisoner were receiving benefits.”

In other words: family members of an incarcerated person are eligible to receive Social Security benefits according to the same rules as family members of non-incarcerated people, said David Principe, a certified financial planner with SAGEbroadview Wealth Management in Morristown.

Per Social Security rules, the spouse of the worker — in this case “worker” is the incarcerated party and “spouse” is the non-incarcerated spouse — may be eligible for a benefit based on the worker’s earnings, he said.

“The spouse must be at least 62 years old or have a qualifying child in her/his care,” he said. “A qualifying child is a child who is under age 16 or who receives Social Security disability benefits.”

A benefit based on a spouse’s work record is called a “spousal benefit.”

The spousal benefit can be as much as half of the worker’s primary insurance amount (PIA), depending on the spouse’s age at retirement, he said. The PIA is the benefit a worker would receive if he/she elects to begin receiving retirement benefits at his/her normal retirement age.

The benefit the spouse receives may be affected based on the age the spouse begins to receive it, however, in any case, it will be based on the larger of either their own retirement benefit or half of the worker’s retirement benefit — again, the spousal benefit.

If the worker is going to be released from prison, there are a couple ways to restart their own benefit, Principe said.
If the prison has a prerelease program with Social Security, they may contact Social Security up to 90 days before release, he said. If they do not, then they should contact Social Security directly.

The Social Security website has a number of resources available online to help guide incarcerated persons and their families about how to manage their benefits.

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This story was originally published on March 3, 2022.

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