social security administrationLast week, the Social Security Administration (SSA) announced that it would begin processing retirement claims for same-sex couples living in marriage equality states.  As a result of this summer’s Supreme Court decision invalidating Section 3 of the Defense of Marriage Act (DOMA) these couples will now be considered married for purposes of all Social Security benefits.   In a statement, Acting Commissioner Carolyn W. Colvin stated that “the recent Supreme Court decision on Section 3 of the Defense of Marriage Act, made just over a month ago, helps to ensure that all Americans are treated fairly and equally, with the dignity and respect they deserve.”

We appreciate this guidance, however this must only be the first step towards ensuring equal access to this critical set of benefits.

  • ISSUE ONE:  Under last week’s guidance, legally married same-sex couples living in states that do not recognize their marriages will continue to experience either a denial or a continued delay when applying for benefits.  This is because under current law SSA determines eligibility based on whether the courts in the state where a couple resides would find them to be legally married.
  • EXAMPLE: A couple who was married in Maryland but now lives in Kansas would not receive benefits under this new guidance because the couple would not be recognized as married under Kansas state law.  If the couple moved back to Maryland or another marriage equality state, however, they would be considered eligible for benefits.
  • OPPORTUNITY FOR ACTION: Some state level courts have determined that same-sex couples are legally married for certain purposes even if the state law does not recognize same-sex marriages generally.  Therefore, we urge SSA to take this precedent into account and to expand access to benefits as broadly as possible under current law.
  • ISSUE TWO: For couples who live in states with civil unions or domestic partnerships, a surviving partner would be considered a “husband” or “wife” under state law for inheritance purposes but it’s not clear that Social Security will recognize them as such.
  • EXAMPLE:  A same-sex partner in a registered domestic partnership in Wisconsin can inherit from his or her partner without a will.  Under current law, this partner will also be considered eligible for Social Security spousal benefits because of these inheritance rights.
  • OPPORTUNITY FOR ACTION: These couples should be considered eligible immediately without any policy change or revision.  We urge SSA to issue additional guidance regarding this provision of the statute to ensure eligible couples and survivors do not needlessly forfeit benefits.

We appreciate last week’s statement and guidance, and urge SSA to take further steps to ensure equal access to these critical benefits to the broadest extent possible.  If you believe that you or your partner is eligible to receive Social Security benefits you should apply now, to avoid loss of potential benefitsReview today’s guidance and learn more about Social Security and how you and your family may be affected.

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