Social Security attempts to incorporate marriage equality. Barriers still exist.

The Social Security Administration (“SSA”) has been working towards incorporating marriage equality into Social Security benefits following last summer's Supreme Court decision striking section three of DOMA in the Windsor case. Nancy Martinez, the Associate Commissioner of the Office of Income and Security Programs, says, “We are certainly not done.” This begs the question: What is there left for the SSA to do? According to Ms. Martinez, Social Security benefits will not extend in some circumstances because of conflicting federal and state laws. Therefore, states that do not recognize same-sex marriage will continue to bar access to many Social Security benefits in some cases.

The SSA provides disability benefits to individuals through two programs, title II and title XVI. Under title II, the Social Security disability insurance program, beneficiaries are people who have reached the age of 62. Under title XVI, the supplemental security income (“SSI”) program, beneficiaries are people who disabled and have a limited income. Each title of the Congressional act that created these programs uses different wordings that could and will upset the flow of benefits to otherwise qualified people.

When claiming benefits, those in need are required to provide medical and non-medical information. Marital status and income are two important non-medical components that the SSA uses to access an individual’s eligibility, and marital status is determined differently in each title. Further, income is determined according to a person’s marital status, which could easily fluctuate.

When faced with the decision whether or not to file for disability benefits, the SSA always encourages applications. But, under many circumstances, the Administration might be required to deny the application, especially under title II. Title II uses very specific language that Windsor did not overturn. The federal government must extend benefits to couples that are legally recognized the state in which they live, but it cannot do more. Therefore, it cannot extend benefits to same-sex couples who would be otherwise recognized under common law, a benefit that opposite-sex couples continue to receive. 

If the couple is applying for benefits, a two-step process is applied for both titles. First, the couple must have been wed in a state that recognizes same-sex marriage. Second, the couple must also live in a state that recognizes same-sex marriage. The couple must meet both of these qualifications within a period determined by the SSA. This period is calculated according the finality of the laws that recognize the marriage in the particular state. (For instance, California had two windows of legally recognized same-sex marriage, and each window allows for the extension of benefits.)

The periods that the couple must have wed and reside in a particular state that has ended its ban on same-sex marriage is provided below.

To ensure that all people, regardless of sexual orientation, receive Social Security benefits one of two things needs to happen Either every state could end its ban on same-sex marriage or Congress could change the wording of the Social Security Act. Either would work, but both are preferable. 

To find out more information, vist the SSA website or same-sex marriage FAQ.