Survivor Benefits with Missing ex-Spouse

A reader asks how to qualify for survivor benefits if her ex-husband has been missing for seven years.

“I am currently 63 and plan on taking my own Social Security at 70 years of age. My ex-husband has been missing overseas since 2019. He was living in the United Arab Emirates but left his employment abruptly, telling his children and brother he was going to China. His overseas employer at the time also reported his disappearance to government authorities. We had no forwarding address or information on his whereabouts in China. No one has heard from him since April of 2019. At the time of his disappearance, I reported him missing to the State Department and have often discussed the situation with government officials. I also visited my congress members and asked for help, to no avail. Next year, he will have been missing for seven years. I will be turning 65 and am considering retiring at that time. I understand that, as an ex-spouse married for 27 years, I am entitled to spousal survival benefits if he is deceased. (I have found documentation that after seven years, he may be declared deceased per Social Security.) Here are my questions: What is your recommendation for proceeding to qualify for spousal survival benefits? Should I consult an attorney, or will my current documentation be adequate to qualify for spousal survival benefits? You mentioned on the podcast once that you would escalate some concerns to a technical expert within Social Security. After some exchanges with Social Security employees, I think that would be beneficial. Any advice or recommendations are appreciated.”

I can help, although it won’t provide a resolution immediately. The qualifications for survivor benefits are pretty straightforward. And, yes, it is true that after being married for 27 years and then divorcing, you qualify for survivor benefits. It’s the same as if you were still married when your spouse passed away – as long as you have not remarried before age 60 and remain married.

You didn’t mention being married currently, so without further information, I assume you qualify.

If this person is deceased, you would qualify for survivor benefits as anyone else would in a basic situation. Now, the key is the whole part about ‘being deceased.’

I ran into a similar issue quite a few years ago – not a disappearance overseas, but someone had disappeared in the woods, as I remember. I looked into that situation and found that Social Security will not make an independent declaration. I don’t believe there’s any documentation that you can provide to Social Security – other than a death certificate – that’s going to open the door to a survivor benefit. They don’t have their own special “Oh if they’re gone for so many years …” exception to bypass that requirement. They rely on a legal declaration of death, which is state-specific and part of a state legal process. So you would have to get that legal declaration of death.

Somehow, in some state, this person will have to be declared deceased. That’s where you may need to engage an attorney. You might be able to share the cost of the legal process if there is some reason why the rest of the family would want a legal declaration of death, too. Perhaps some assets are in limbo until there is such a declaration. Regardless, I believe that is the direction you need to go -- your path to possibly having survivor benefits.

For you, it’s all about collecting survivor benefits for maybe five years until, as you said, you collect your own at 70. So it's for you to decide if there’s enough at stake to offset the legal cost of getting the formal declaration of death. I don’t know that math. It might not end up being worth it – unless others are interested in having him declared deceased and willing to share in the cost.

Before engaging an attorney, you might first get ahold of the state or county coroner’s office where your ex-spouse lived. They might be able to give you some steps to try on your own before incurring legal costs. We often hear of people being declared legally dead after shipwrecks or falling overboard at sea, for example, where there is no body as proof of death. (Seven years of not hearing from someone sounds about right.)

People need to be able to move on with their lives, and if anybody would know the process, it would be the relevant coroner’s office. Explain the facts to them and see if there is a way to start petitioning the state to declare your disappeared ex-spouse deceased. There might be a way to do it. If not, it might then make sense to hire an attorney so you can collect something now as you let your Social Security grow to 70.

You are eligible to claim an ex-spousal benefit right away – without a declaration of death – but you would get more from a survivor benefit. With an ex-spousal benefit, you would lose the advantage of waiting until 70 because of the ‘deeming rule.’ With the ex-spousal benefit, you are deemed to be claiming your retirement benefit before receiving the spousal offset (the difference between your benefit and half of your spouse’s or ex-spouse’s benefit). However, survivor benefits don’t work that way, so your strategy is viable.

I’m not certain of the process of obtaining a legal declaration of death in the case of a missing person. However, I am certain that such a declaration must be presented for Social Security to open up a survivor benefit. Good luck!