What are my rights to my spouses social security benefits

Federal law as to social security benefits requires separate property treatment. Under the Hisquierdo preemption standard ("major damage" to "clear and substantial" federal interests,), social security "primary" benefits must be treated as the employee spouse's separate property; they are not subject to a community property division. [Marriage of Hillerman (1980) 109 Cal.App.3d 334, 343-345, 167 Cal.Rptr. 240, 245-246; Marriage of Cohen (1980) 105 Cal.App.3d 836, 843, 164 Cal.Rptr. 672, 676]

The rationale for this is the Congressional intent to preempt is found in the Social Security Act's anti-garnishment language; in its separate provision for social security interests upon divorce; and, in the nature of the system itself . . . which is one of "social insurance" designed to provide financial security for covered workers and their families, rather than deferred compensation for services rendered. [Marriage of Hillerman, supra, 109 Cal.App.3d at 342-344, 167 Cal.Rptr. at 245; Marriage of Cohen, supra, 105 Cal.App.3d at 843, 164 Cal.Rptr. at 676--SSA benefits "not an asset of the community," are "not subject to division," and CP claims "cannot be recognized by any alternative provision employing a setoff"]

However, a former spouse may have "derivative benefits" payable to them.. Derivative social security benefits (as distinct from the employee spouse's "primary" social security benefits, above) are payable to a spouse or ex-spouse after the employee's retirement following a marriage that lasted at least 10 years, measured from the date of marriage to the date the marriage is dissolved. [42 USCA  402(b), 416(d)] Likewise, ex-spouses who have reached age 62 and who were married to the employee for at least 10 years and divorced for at least two years are eligible for derivative social security benefits if the employee (now former) spouse will be eligible for social security primary benefits upon retirement. [42 USCA  402(b)]

Under preemptive federal law, these derivative benefits are the ex-spouse's separate property. [Marriage of Hillerman, supra, 109 Cal.App.3d at 343-345, 167 Cal.Rptr. at 245-246]