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Social Security Benefits for Same-Sex Married Couples

Posted on: November 20th, 2015
same sex estate planningOn August 21, 2015 the U.S. Department of Justice announced that the Social Security Administration would grant equal treatment to same and opposite-sex married couples when determining benefit eligibility. This announcement followed June’s historic Supreme Court decision in Obergefell v. Hodges, in which the Court granted nationwide marriage equality regardless of gender or sexual orientation. 

For many married couples, the ability to claim spousal Social Security benefits provides an important source of supplemental income, particularly for couples in which one spouse earns significantly more income than the other. Benefits that may be available to spouses of workers who are eligible to receive Social Security include spousal retirement benefits, spousal disability benefits, a lump-sum death benefit, divorced spousal benefits, and survivor benefits. The ability of a spouse to claim these benefits, and the amount of benefit granted, depends on various factors, including the length of the marriage, whether one or both spouses have elected for early retirement, and whether other dependents are also claiming Social Security benefits based on the spouse’s work record.

In order to qualify for spousal retirement benefits, the spouse seeking the benefit must have been married to the working spouse for at least 12 months prior to application; the determination of whether a couple is legally married is based on recognition of the marriage in the couple’s domiciliary state. As a result, prior to the Obergefell decision, many couples who were legally married in one state but moved to a non-recognition state were not eligible for spousal Social Security benefits. Following Obergefell, the door is open to married couples in each state to apply for spousal benefits if all other requirements for application are met. Spouses who meet these requirements are eligible to receive the greater of their own Social Security retirement benefit or an amount equal to 50% of their retired spouse’s benefit. This can provide a significant source of additional income to married couples where one spouse did not work or earned substantially less income than the primary wage earner. 

Social Security disability benefits are available to workers who meet the Federal definition of disability, which provides that the individual is disabled if he or she cannot work due to a medical condition expected to last for at least one year or result in death. Spouses of workers who receive disability benefits may be eligible to receive up to 50% of their disabled spouse’s monthly benefit. The requirements to apply for this benefit are similar to those for claiming spousal retirement benefits; thus, many same-sex couples who were previously precluded from applying for spousal disability benefits may now be eligible. Likewise, surviving same-sex spouses who formerly were unable to claim survivor’s benefits due to residence in a non-recognition state may now claim these benefits if they were legally married to the deceased spouse for at least nine months prior to application and have met all other requirements for application.

Other spousal Social Security benefits that may now be available to members of same-sex married couples include lump-sum death benefits and benefits for divorced spouses, available only if the couple remained married for at least ten years and the former spouse applying for the benefit is not remarried, among other requirements. This benefit will likely become more important in future years as more same-sex married couples reach the ten-year anniversary threshold.

Couples who lived in former non-recognition states and previously applied for benefits must refile their application if they were denied benefits and did not appeal. If the new application is accepted, benefit eligibility will be granted as of the new application date. Those who appealed a denial and are still within the 60-day appeal window should file their appeals as soon as possible in order to preserve their eligibility to receive benefits as of the initial application date. It is still unclear to what extent same-sex couples who had already begun receiving Social Security benefits based on their own work records prior to the recognition of their marriage will be granted retroactive spousal benefits. However, the Social Security Administration is urging couples who may now be eligible for spousal benefits to apply. For these couples, and for those who have yet to claim Social Security benefits, the impact of the Obergefell decision will greatly impact their financial planning opportunities. 

By Attorney Samantha Reichle
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