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Ask Dr. Fiona Chen Your Own Question
Dr. Fiona Chen
Dr. Fiona Chen, Certified Public Accountant (CPA)
Category: Social Security
Satisfied Customers: 427
Experience:  Former IRS Revenue Agent
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10 August 2016 12:03 Can you quote the specific code /

Customer Question

10 August 2016 12:03
Can you quote the specific code / location of the law?
Submitted: 7 months ago.
Category: Social Security
Customer: replied 7 months ago.
A followup question -she could claim spousal at age 70 for 1/2 of my age 70 amount- correct?
Expert:  Dr. Fiona Chen replied 7 months ago.

Dear Customer,

The prior expert was clear that your spouse' spousal benefit max out at the amount of your full retirement age and cannot be for the increased amount accumulated for you after, say to 70 years old, etc.

As to the reference of the codes and the law, there are several citations and references for your information. The law codes, etc. is enclosed as the last.

The best explanation with the laws is that for the spousal benefit, supposedly, the spouse is entitled for half of the full retirement age the primary beneficiary's full retirement. That is what the law allows. Then, this amount is reduced by certain percentage if the spouse takes the retirement benefit earlier than the full retirement age or the primary beneficiary takes earlier retirement age than the full retirement age.

Then, the law allows the primary beneficiary to continue accumulates his/her retirement to age 70. But the law never allows the spouse benefit of such accumulation. So, it is not that the law disallows spousal benefit to increase above the primary beneficiary's full retirement age. It is that the law never allows and/or provides for the spousal benefit to increase beyond the primary beneficiary's full retirement age. Therefore, if there is no law allows for that, the government cannot give the spousal benefit beyond the amount at full retirement age because the government does not have laws to permit it to do so.

Regards,

Fiona Chen, MPA, Ph.D., CPA, ABV, CFF, CITP

The law and code section is enclosed last.

"If you qualify for benefits on your own record, we will pay that amount first. If the benefit on your spouse’s record is higher, you'll get an additional amount on your spouse’s record so that the combination of benefits equals that higher amount.

Note:Your benefits as a spouse do not include any delayed retirement credits your spouse may receive." It is from the website of the Social Security Administration.

https://www.ssa.gov/oact/quickcalc/spouse.html

https://www.ssa.gov/planners/retire/applying6.html#&a0=0

https://www.ssa.gov/planners/retire/claiming.html

https://www.ssa.gov/OP_Home/ssact/title02/0202.htm

OLD-AGE AND SURVIVORS INSURANCE BENEFIT PAYMENTS

Sec. 202. [42 U.S.C. 402]

Presumed Filing of Application by Individuals Eligible for Old-Age Insurance Benefits and for Wife’s or Husband’s Insurance Benefits

(r)(1) If the first month for which an individual is entitled to an old-age insurance benefit is a month before the month in which such individual attains retirement age (as defined in section 216(l)), and if such individual is eligible for a wife’s or husband’s insurance benefit for such first month, such individual shall be deemed to have filed an application in such month for wife’s or husband’s insurance benefits.

(2) If the first month for which an individual is entitled to a wife’s or husband’s insurance benefit reduced under subsection (q) is a month before the month in which such individual attains retirement age (as defined in section 216(l)), and if such individual is eligible (but for section 202(k)(4)) for an old-age insurance benefit for such first month, such individual shall be deemed to have filed an application for old-age insurance benefits—

(A) in such month,or

(B) if such individual is also entitled to a disability insurance benefit for such month,in the first subsequent month for which such individual is not entitled to a disability insurance benefit.

(3) For purposes of this subsection, an individual shall be deemed eligible for a benefit for a month if, upon filing application therefor in such month, he would be entitled to such benefit for such month.

Increase in Old-Age Insurance Benefit Amounts on Account of Delayed Retirement

(w)(1) The amount of an old-age insurance benefit (other than a benefit based on a primary insurance amount determined under section 215(a)(3) as in effect in December1978 or section 215(a)(1)(C)(i) as in effect thereafter) which is payable without regard to this subsection to an individual shall be increased by—

(A) the applicable percentage (as determined under paragraph (6)) of such amount, multiplied by

(B) the number(if any) of the increment months for such individual.

(2) For purposes of this subsection, the number of increment months for any individual shall be a number equal to the total number of the months—

(A) which have elapsed after the month before the month in which such individual attained retirement age (as defined in section 216(l)) or (if later) December 1970 and prior to the month in which such individual attained age 70, and

(B) with respect to which—

(i) such individual was a fully insured individual (as defined in section 214(a)),

(ii) such individual either was not entitled to an old-age insurance benefit or, if soentitled, did not receive benefits pursuant to a request by such individual that benefits not be paid, and

(iii) such individual was not subject to a penalty imposed under section 1129A.

(3) For purposes of applying the provisions of paragraph (1), a determination shall be made under paragraph (2) for each year, beginning with 1972, of the total number of an individual’s increment months through the year for which the determination is made and the total so determined shall be applicable to such individual’s old-age insurance benefits beginning with benefits for January of the year following the year for which such determination is made; except that the total number applicable in the case of an individual who attains age 70 after 1972shall be determined through the month before the month in which he attains such age and shall be applicable to his old-age insurance benefit beginning with the month in which he attains such age.

(4) This subsection shall be applied after reduction under section 203(a).

(5) If an individual’s primary insurance amount is determined under paragraph (3) of section 215(a) as in effect in December 1978, or section 215(a)(1)(C)(i) as in effect thereafter,and, as a result of this subsection, he would be entitled to a higher old-age insurance benefit if his primary insurance amount were determined under section 215(a) (whether before, in, or after December 1978) without regard to such paragraph, such individual’s old-age insurance benefit based upon his primary insurance amount determined under such paragraph shall be increased by an amount equal to the difference between such benefit and the benefit to which he would be entitled if his primary insurance amount were determined under such section without regard to such paragraph.

(6) For purposes of paragraph (1)(A), the “applicable percentage” is—

(A) 1/12 of 1 percent in the case of an individual who first becomes eligible for an old-age insurance benefit in any calendar year before 1979;

(B) 1/4 of 1 percent in the case of an individual who first becomes eligible for an old-age insurance benefit in any calendar year after 1978 and before 1987;

(C) in the case of an individual who first becomes eligible for an old-age insurance benefit in a calendar year after 1986 and before 2005, a percentage equal to the applicable percentage in effect under this paragraph for persons who first became eligible for an old-age insurance benefit in the preceding calendar year (as increased pursuant to this subparagraph),plus 1/24 of 1 percent if the calendar year in which that particular individual first becomes eligible for such benefit is not evenly divisible by 2; and

(D) 2/3 of 1 percent in the case of an individual who first becomes eligible for an old-age insurance benefit in a calendar year after 2004.

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