Social Security Survivor Benefits for Same-Sex Spouses

On June 26, 2013, the United States Supreme Court ruled Section 3 of the Defense of Marriage Act unconstitutional. The Court declared that same-sex couples who are legally married deserve equal rights to the benefits under federal law that go to all other married couples. Today, Social Security must recognize many same-sex marriages in determining entitlement or payout amount. Social Security is now processing retirement, surviving spouse, and lump-sum death payment claims for same-sex couples.

Who Is Eligible?

Legally married same-sex couples who live in states where their marriages are recognized are entitled to Social Security spousal benefits. The Social Security Administration (SSA) looks to the law of the state of the Social Security number holder's domicile to determine whether it can recognize the marriage. If the Social Security number holder is alive, the SSA looks to the number holder's domicile at the time of application or while the claim's pending a final determination.

This means that couples who are legally married in a state that permits same-sex marriage and who reside in a state that recognizes same-sex marriage, are entitled to spousal benefits during marriage and survivor benefits after the death of one spouse. For example, if you and your spouse are legally married in a state that permits same-sex marriage but reside in a state that doesn't recognize same-sex marriage, your marriage won't be recognized for purposes of determining entitlement. However, if you and your spouse move to a state that does recognize your marriage, your marriage will be recognized for purposes of determining entitlement as long as your claim's pending and hasn't reached final determination.

If you and your spouse were married in a state that permits same-sex marriage and your spouse later dies while living in a state that doesn't recognize same-sex marriage, your marriage can't be recognized for purposes of determining entitlement to benefits, even if your spouse's state later recognizes same-sex marriage. This is because the state didn't recognize same-sex marriage at the time of your spouse's death.

Further Policy Developments

Although the SSA has determined that the Social Security Act requires it to follow state law in Social Security cases, its current policy allows it to recognize some non-marital legal relationships as marriages in determining benefit entitlement. Examples of such non-marital legal relationships include civil unions, domestic partnerships, and reciprocal beneficiary relationships.

Additionally, the SSA's current policy allows for the processing of claims in states that don't yet recognize same-sex marriages or non-marital legal relationships. This means that rather than denying these types of claims based on the rules discussed above, the SSA may instead process the claims and place them on hold. Legislation has been introduced, and lawsuits filed, that would require the SSA to grant equal rights on benefits to legally married same-sex couples regardless of whether they live in a state that doesn't recognize same-sex marriage.

Next Steps

The Social Security Administration is encouraging claimants to apply while it further develops its policy, so that claimants are protected against the loss of any potential benefits. If you would like assistance in better understanding your potential claim, it's in your best interests to contact a Social Security attorney.