In June, the United States Supreme Court issued its ruling striking down section 3 of the Defense of Marriage Act (DOMA) which defined marriage as being only between a man and a woman. It specifically excluded marriages of same-sex couples. The Court said that the law was unconstitutional and struck it down finding, “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”
So what does the definition of marriage have to do with Social Security? Well, potentially, quite a bit. Under the Social Security laws and regulations, there are benefits available to a widow/widower. Survivor benefits are available for your children until they reach age 18 (19 if they are still in High School), and your surviving spouse who is caring for that child will also be entitled to benefits until the child is 16 years old. After that, your widow/widower can receive retirement benefits based on your earnings record at their full retirement age or early retirement at age 60. If your surviving spouse is disabled, they can start receiving benefits based on your earnings at age 50. Your surviving spouse may also be entitled to a one-time payment of $255. The Social Security Administration has already started processing applications for these benefits and they encourage people who believe they are entitled to benefits to apply.
The real question in all of this is going to come down to how Social Security is going to handle applications for these benefits in states that do not have marriage equality. There is little doubt that in states with marriage equality these individuals will qualify for Survivor benefits. However, the Social Security Regulations provide that when looking at who is a husband/wife you look first to the laws of the state where you had your permanent residence at the time you applied. As an example of the problems this could cause, if 2 couples were married in New York and 1 couple moves to Ohio, then under this interpretation the New York widow would be entitled to Survivors Benefits under Social Security Act, while the Ohio widow would not. This makes no sense as this is a Federal program and there should not be such inconsistency in who qualifies just based on the state laws of the state they happen to live in. The Social Security Administration has not yet released its rules and regulations letting us know how they are going to apply this ruling across all states.
At some point, both the federal government and all of the states are going to get this right and protect the dignity of all marriages. We may be years away from that day but I believe that this is a step in the right direction. For now, we will have to wait and see just how the Social Security Administration applies the decision from the Supreme Court. If you feel that you are entitled to widow/widowers benefits, or any benefit under Social Security, please contact us. We will be happy to discuss your case with you and advise you of your rights.