THINKING RETIREMENT – ANDY LANDIS –
When society changes, Social Security follows suit. A recent Supreme Court ruling opened the door to Social Security spouse payments for same-sex couples. SSA is developing policy to comply with the ruling.
In order to receive Social Security spouse or widow’s payments, you have to prove marriage to the eligible worker. For Social Security purposes the marriage must be legal and recognized by at least one U.S. state. Couples who cohabit without legal status cannot qualify for spouse or widow’s payments.
For many decades, SSA recognized numerous different kinds of marriage, including civil or religious ceremonial marriages performed in the U.S. or abroad, common-law (non-ceremonial) marriages as legally defined in nine states, some foreign polygamous marriages, and even certain bigamous marriages in West Virginia. In each case, SSA followed state law to determine the legality of any marriage.
However, there was one type of marriage that SSA did not recognize: same-sex marriage. With the Defense of Marriage Act of 1996 (DOMA) Congress made it illegal for federal agencies like IRS, the military, and SSA to recognize same-sex spouses, even if recognized by state law.
That changed on June 26, 2013, when the U.S. Supreme Court struck down key portions of DOMA in the United States v. Windsor case. http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf
The implications of Windsor are surprisingly complex. Since the decision, SSA has been working with the Department of Justice to develop rules on how to handle claims involving same-sex marriage. Almost immediately SSA announced that it would accept benefit claims from same-sex spouses and hold the claims while deciding policy. Now new rules have been published and some claims are being paid:
- For retirement-age spouses, SSA is paying spouse benefits if the couple wedded in a state that performs same-sex marriages, and reside at the time of claiming Social Security in a state that recognizes same-sex marriage.
- For child’s benefits, SSA can pay a non-biological child of a same-sex spouse if the state’s intestacy laws (covering death without a will) recognize the child as a possible heir.
- For transgender claims SSA follows state law on whether the marriage is valid after gender change.
At press time SSA had still not set policy on the following claim types:
- A survivor’s claim from a widow or widower after the death of a same-sex spouse
- A claim from a same-sex spouse younger than retirement age caring for an eligible child
- Claims based on legal relationships other than marriage, such as civil unions and domestic partnerships
SSA says it may take weeks or months to set policy for every type of claim. A handy source of timely information is the SSA press office. http://www.ssa.gov/pressoffice/pressrel.htm
All of these rules are in flux, and only SSA can make official decisions. Be sure to consult closely and timely with SSA, and when in doubt, file a claim. Your filing date determines when payments can begin, so don’t delay.
As always, keep on planning