The White House recently announced an expansion of federal benefits to same-sex couples, which had been promised by President Barack Obama. But the expansion does not fully include Social Security, which will require legislation to significantly broaden benefits. That leaves many gay couples seeking to make claims in legal limbo for now.
The timing of the Obama administration push occurred just before the one-year anniversary of the U.S. Supreme Court’s partial overturning of the Defense of Marriage Act (DOMA). (The ruling was issued on June 26, 2013.) The court’s decision triggered a sweeping state-by-state legal assault on bans of same-sex marriages and civil unions. Today more than half the people in the nation live in states where such unions are recognized; legal challenges have been filed in every other state.
In the wake of these changes, most federal agencies now recognize same-sex marriages as valid if they took place in a state that recognized the union, even if the couple currently lives elsewhere. But as the Attorney General noted last week, a federal statute requires the Social Security Administration to “confer certain marriage-related benefits based on the law of the state in which the married couple resides or resided, preventing the extension of benefits to same-sex married couples living in states that do not allow or recognize same-sex marriages.” (The Veterans Administration is also hampered by this law.)
Given these legal restrictions, the approval of a same-sex Social Security claim depends largely on whether the applicant whose earnings record is the basis for the claim actually lives in a state that permits same-sex unions. If you happen to live in a state that does not, your application for benefits may be put on hold. There can be exceptions if the claimants lived in a state that recognized same-sex unions when they applied for benefits but later moved to a state that did not.
After the DOMA ruling, Social Security quickly encouraged same-sex couples to file for benefits if they felt they were entitled to them and developed new and expanded rules for these claims. But because of the state residence issue, the agency has placed an unknown number of those applications on hold. Social Security did not respond to repeated requests for details about approvals and holds for same-sex benefit applications.
Social Security apparently is approving benefit applications from couples married in one of roughly 20 states (plus D.C.) where same-sex unions are recognized and who meet the residence requirements. The agency also has recently begun to recognize civil-union spouses as qualifying for benefits. Under rules that apply to all couples, people must be married for nine months to qualify for widow or widower benefits and 12 months to qualify for spousal benefits. The Program Operations Manual System that instructs agency employees has been overhauled to include new guidance and examples of how to handle same-sex benefit applications.
A marriage must last for 10 years before divorce occurs in order for an ex-spouse to qualify for divorce benefits. Massachusetts was the first state to approve same-sex marriage, in 2004, so few same-sex couples currently qualify for divorce benefits.
To date, the biggest effect of the DOMA ruling has been to educate same-sex couples about potential claims, according to Stuart H. Armstrong II, a Massachusetts financial planner at Centinel Financial Group, who advises many LGBT clients. “Because this is such a sea change in the way of thinking, it is important for people to be aware of these benefits,” says Armstrong, also a national board member of the Financial Planning Association. “A lot of us are still pinching ourselves, realizing that this has happened so fast.”
Armstrong advises same-sex couples to review any recent Social Security claiming decisions made before they were married. Such decisions, made as individuals, might be less appealing financially than decisions available to a spouse who is married. Under Social Security rules, benefit decisions less than a year old can be withdrawn and claimants can get a “fresh slate” as regards their benefits. (They would have to repay any Social Security benefits already received, including Medicare Part B premiums for hospital insurance.)
“As access to marriage equality expands state by state, the denial of [Social Security] benefits based simply on ZIP code will increase the demand and urgency for a real solution for all families,” said Robin Maril, senior legislative counsel for the Human Rights Campaign, a Washington non-profit that has led efforts to broaden legal recognition for the LGBT community.
The group supports legislation that already has been introduced to change the Social Security law. But it’s hard to envision House conservatives voting to recognize same-sex marriage. Don’t expect the legal limbo over Social Security claims to clear up anytime soon.
Philip Moeller is an expert on retirement, aging and health. He is an award-winning business journalist and a research fellow at the Sloan Center on Aging & Work at Boston College. Reach him at [email protected] or @PhilMoeller on Twitter.