Money & Policy

The New Social Security Rules for Same-Sex Couples

A guide to who's entitled to which type of benefits

The Social Security rules for same-sex couples just got a little less murky, though they’re still pretty complicated. Here’s a rundown to help same-sex couples understand the ins and outs of claiming benefits:

First, the latest news: On August 21, 2015, the U.S. Department of Justice gave its blessing to say that the Social Security Administration would treat married same-sex couples equally across the country when determining eligibility for benefits. This decision came in a federal lawsuit filed by same-sex couples and surviving spouses who were denied Social Security benefits because they lived in states that did not recognize their marriage. (The Justice Department determination has no bearing on unmarried same-sex couples.)

In other words: same-sex married couples who were living in states that didn’t recognize their unions and who had filed for Social Security will now be able to collect the benefits.

This ruling follows, of course, the U.S. Supreme Court’s June 26, 2015 decision (Obergefell v. Hodges) granting marriage equality to all without regard to gender or sexual orientation. Before that, the Social Security Administration had denied applications for benefits from same-sex couples living in nonrecognition states. That restriction no longer exists.

The U.S. Department of Justice gave its blessing to say that Social Security would treat married same-sex couples equally when determining eligibility for benefits.

Here’s what’s still unclear: The Social Security Administration must issue a new policy implementing the Obergefell decision, but hasn’t said when that will happen. As of now, the rules are the same for same-sex and heterosexual married couples.

What Social Security Is Doing Now

Currently, Social Security is processing applications from same-sex couples and their surviving spouses who were living in nonrecognition states and wanted to receive spousal benefits and surviving spouse benefits.

Same-sex couples and surviving spouses who were denied benefits and didn’t appeal the denial need to re-file their applications to the Social Security Administration. Benefits eligibility will be determined by the date of their application.

Surviving spouses or couples who’ve been denied and are still within the 60-day appeal period should file their appeals immediately. That will preserve their right to receive benefits back to the initial application date.

Social Security 101

Unmarried same-sex couples are treated by Social Security as individuals, not couples. Therefore, they’re not eligible for spousal retirement benefits or surviving spouse benefits. And if they split, they won’t be entitled to benefits as a “divorced spouse.”

Married same-sex couples will likely find applying for Social Security benefits on a spouse’s account (spousal benefits) a new experience. Likewise, until the Obergefell decision, surviving same-sex spouses living in nonrecognition states were routinely denied survivor benefits.

Married same-sex couples may be allowed to apply for Social Security benefits either on their own work record or on their spouse’s work record. When an application is made, Social Security will award the spouse the higher amount — whether on the applicant’s own work record or the spouse’s record.

The length of a marriage determines your eligibility for spousal benefits and surviving spouse benefits. To receive spousal benefits, you must have been in a legal marriage of at least one year. Surviving spouses generally are eligible for benefits on the deceased spouse’s earnings record if the marriage lasted at least nine months.

A divorced spouse is eligible to receive Social Security benefits on a former spouse’s work record if: the marriage lasted at least 10 years; the applicant is at least 62 and is unmarried when applying. Few divorced same-sex spouses will meet these requirements because marriage equality first became available in 2004.

The Big Potential Problem

The major problem for same-sex couples wanting to claim Social Security benefits is meeting the marriage duration requirement if they recently married and live in former nonrecognition states. Those states did not recognize civil unions or domestic partnerships, and the Obergefell decision does not apply. If the Social Security Administration decides not to use those relationships to help couples meet the marriage duration requirement, many same-sex couples will be denied Social Security spousal benefits.

In that case, long-time same-sex couples who married as soon as they could but weren’t married long enough to qualify for Social Security benefits will suffer a significant financial loss.

Older same-sex couples may have started receiving Social Security benefits based on their own work record before their marriage was recognized. If payments began before they reached their Full Retirement Age, their spousal benefit will be lower.

2 Specialized Claiming Strategies

If both spouses have reached their Full Retirement Age — currently that’s between age 66 and 67 depending on when you were born — they can take advantage of two often overlooked claiming strategies: “file and suspend” and “filling a restricted application.”

With “file and suspend,” one spouse files for Social Security benefits and suspends receipt of them while the other spouse files for spousal benefits. Then, the first spouse accrues what are called Delayed Retirement Credits, boosting the size of Social Security checks until age 70.

With a “restricted application for a spousal benefit,” available once you reach Full Retirement Age, you file for a spousal benefit on your spouse’s record. Then, the size of your own benefits will grow based on your work record until age 70.

Couples can combine these two strategies to maximize benefits, essentially letting both spouses earn Delayed Retirement Credits until 70 if one spouse intends to continue working.

Children of Same-Sex Spouses

A child of a same-sex married couple may receive Social Security benefits if a parent is eligible for Social Security and the child is unmarried and under 18 (in some cases, other children can get benefits, too; see the Social Security site for details.) Social Security defines “child” as someone who could inherit from the wage earner under state intestacy laws; biological and adopted children are covered.

A child can be eligible for Social Security if the wage-earner parent’s state did not recognize the marriage. In that case, the parent can acknowledge the child as her own, obtain a court decree acknowledging her parental status or pay court-ordered child support.

The rules are more complicated than this article can describe, so same-sex parents who’d like their children to receive Social Security benefits should consult a knowledgeable lawyer or go to a Social Security office for assistance.

By Joan M. Burda
Joan M. Burda is the author of Estate Planning for Same-Sex Couples and Gay, Lesbian and Transgender Clients: A Lawyer's Guide. She has practiced law in Ohio for more than 28 years and is an adjunct professor of law at Case Western Reserve University School of Law and an adjunct faculty member in the legal studies program at Ursuline College.

Next Avenue Editors Also Recommend:

Next Avenue brings you stories that are inspiring and change lives. We know that because we hear it from our readers every single day. One reader says,

"Every time I read a post, I feel like I'm able to take a single, clear lesson away from it, which is why I think it's so great."

Your generous donation will help us continue to bring you the information you care about. Every dollar donated allows us to remain a free and accessible public service. What story will you help make possible?