June 26, 2014
On June 20, 2014, the Social Security Administration (SSA) issued extensive guidance on eligibility for spouse-based retirement and survivor benefits, Medicare and SSI benefits, which greatly expands the number of same-sex couples who are eligible for those benefits. GLAD, together with other LGBT organizations, has been advocating with SSA to interpret its rules in a way that maximizes the number of same-sex couples who can qualify for these benefits. If you feel that you are eligible for any of these benefits, you should apply as soon as possible because the benefit is effective the date of the application.
With the U.S. Supreme Court striking down the discriminatory federal limitation on marriage in the “Defense of Marriage Act” in the Windsor decision last June, it was clear that married same-sex couples living in a place that recognizes their marriage are eligible for the full range of Social Security and Medicare spouse-based benefits as long as they meet the other requirements for the benefit. The new guidance primarily speaks to how SSA will treat the marriages of married couples and surviving spouses who live in states that do not recognize those marriages, and how SSA will treat other legal statuses like civil unions and domestic partnerships.
The answers provided by SSA require careful attention to detail. First, SSA and the Department of Justice concluded that SSA is bound by existing law to look to the law of the state where the applicant lives or where the deceased spouse died. This means that instead of using the “Place of Celebration” rule like many other federal programs (which means that as long as you legally married, it doesn’t matter where you currently live), SSA believes it is required to use the “Place of Residence” rule. This rule requires SSA to look to the laws of the place where the couple resides (or where the deceased died if it is a survivor benefits claim, or where the applicant moved to while the application is pending) to determine whether their marriage is respected for SSA purposes.
The federal laws governing eligibility for SSA benefits also provide alternate means for a person to be recognized as a spouse, and SSA has embraced this reading of the law to provide spousal benefits to many people joined in civil union or registered domestic partnership. Under the SSA’s laws, a person is considered a spouse when he or she can inherit personal property from the other without a will as would a husband or a wife (this is referred to as intestate rights). SSA has identified states whose laws (statutes) provide spousal inheritance rights to non-marriage relationships, so that people joined in those statuses and living in those states should be considered spouses for some SSA benefits (see https://secure.ssa.gov/apps10/poms.nsf/lnx/0200210004).
The ability to obtain premium-free Medicare Part A based on the work record of your spouse, uses the same rule as described above for Social Security spouse-based retirement and survivor benefits.
However, the rule for SSI eligibility is different from spousal-based retirement and survivor benefits. SSI only recognizes marriages (so couples with civil unions and domestic partnerships will be considered single when determining SSI eligibility) and looks to the laws of the state where the couple resides or where the applicant moves to while the application is pending to determine whether the marriage will be recognized.
GLAD continues to encourage people to apply for benefits if they think they may qualify. In terms of the six New England states, at a minimum, SSA’s Guidance should mean that the following relationships are respected:
- Connecticut—marriage, civil union
- Maine—marriage, Maine registered domestic partnership
- New Hampshire—marriage, civil union
- Rhode Island—marriage, civil union
- Vermont—marriage, civil union
GLAD believes that based on state statute or case law that there are arguments to be made for additional relationships being eligible for benefits. If you believe that your relationship grants you intestate rights under the laws of your state of residence, and that you meet the other requirements for the benefit, then you should apply. There is no penalty for applying for a benefit and being denied, but since the date of application determines when the benefit begins, you can lose part of the benefit if you do not apply as soon as you are eligible.
If you have questions or are denied a benefit, please contact GLAD Answers by email or live chat at www.GLADAnswers.org or by phone 800-455-GLAD (4523).
For more detailed information, see http://www.ssa.gov/news/press/releases.html#!/print/6-2014-1, https://secure.ssa.gov/apps10/poms.nsf/lnx/0200210000 and https://www.glad.org/doma/topics/c/social-security-spousal-and-family-protections.