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Security Agency Processing Same-Sex Marriage Claims
Social Security Administration recently announced that it will begin
processing claims for spousal benefits involving gay and lesbian
couples who were married in states that recognize same-sex marriage.
As I’ve pointed out several times in past columns, SSA has always followed
state laws when it comes to recognizing the legality of a marriage. In other
words, if your state says you are married, then Social Security will say you
are married, too.
Until recently, something called the “Defense of Marriage Act” prevented
federal agencies from recognizing same-sex unions as valid marriages and thus
kept the government from paying any benefits normally due to these legally married
couples. But about a month ago, the Supreme Court struck down those provisions
of DOMA. And recently, the Commissioner of Social Security issued a statement
indicating that SSA was now processing claims for same-sex spousal benefits.
Commissioner Carolyn Colvin encouraged same sex couples that were married in
states that recognize their union to file spousal claims as soon as possible
in order to protect their legal rights to benefits. But she asked for their patience
as she pointed out that it could take months to develop the necessary policy
and processing instructions.
Essentially, the same spousal benefits payable to heterosexual couples will be
available to same-sex couples. I will briefly outline the eligibility requirements.
In a nutshell, the rules say that in order to collect benefits as a spouse on
your husband or wife’s Social Security record, you must:
• be at least 62 years old;
• be legally married, and the marriage must have been in effect for at
least one year;
• be married to someone who is entitled to Social Security retirement or
disability benefits; and
• not be eligible for higher benefits on your own Social Security record.
It’s that last requirement that has traditionally kept many people (usually
women) from collecting spousal benefits on a husband’s account. And it
will also keep many same-sex spouses from qualifying for similar benefits. In
other words, just as many women have worked and earned their own Social Security
retirement benefit, thus precluding their eligibility for dependent wife’s
benefits from a husband, so too will most same-sex spouses be prevented from
getting spousal benefits because they will likely get higher benefits on their
Here is a quick example of that. Bob is 67 and has been getting $2,100 per month
in retirement benefits since he filed for Social Security at age 66. His wife,
Eve, who has worked off and on during her life, is turning 62 and will be applying
for her Social Security benefits at that age. She is due a reduced retirement
rate of $800 on her own account. Eve is technically due one third of Bob’s
rate in spousal benefits. (Note: she is not due half of Bob’s rate, as
many people assume a spouse gets, because she is taking reduced benefits at age
62.) One-third of Bob’s $2,100 Social Security benefit is about $690. Eve’s
own $800 rate exceeds that, so she isn’t due any spousal benefits.
In other words, she doesn’t meet that last eligibility requirement listed
above that says she must “not be eligible for higher benefits on [her]
own Social Security account. And if you simply change “Eve” to “Steve,” the
same rules would apply to a same-sex couple.
On the other hand, same-sex couples will be able to make use of the same loopholes
in spousal benefits available to heterosexual couples. Those loopholes have been
discussed many times in this column, including, for example, the restricted application
policy that allows a 66-year-old potential retiree to forgo retirement benefits
until age 70, and in the meantime, collect husband’s or wife’s benefits
from a spouse’s Social Security account. (You can find an explanation of
these loopholes if you search my past columns at www.creators.com.)
Presumably, same-sex couples that are divorced will also be eligible for the
same benefits available to all other divorced couples. Other than the fact that
the marriage must have lasted at least 10 years and the person potentially due
divorced spousal benefits must be currently unmarried, the eligibility rules
for divorced spouses are the same as the rules for married spouses as outlined
above — with one important exception. A divorced spouse can get benefits
from an ex even if the ex is not yet getting benefits himself or herself. But
the ex must be at least age 62.
Finally, Social Security survivor’s benefits will also be available to
same-sex couples. Let’s go back to my Bob and Eve example above. Bob was
getting $2,100 per month, and his wife, Eve, was getting her own $800 benefit — and
that amount prevented her from getting a wife’s benefit on Bob’s
account. But when Bob dies, and assuming she is at least age 66 when that happens,
Eve would start getting $1,300 in widow’s benefits to supplement her $800
retirement rate, meaning Eve’s total benefits will be $2,100 per month.
Once again, change “Eve” to “Steve” and he will be eligible
for the same widow or widower’s benefit.
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