DOMA: Social Security Spousal Benefits

Wednesday, August 21, 2013

by Scott Greenberg

As promised, we’re taking a look at the impact DOMA will have on insurance planning, specifically concerning social security spousal benefits, for same-sex couples.


Will states start recognizing out-of-state same-sex marriages or even allow them to happen?

Pennsylvania and Virginia could possibly follow Maryland and Delaware’s footsteps, which legalized same-sex marriages in January and July, respectively.

A federal lawsuit was filed in Pennsylvania by the America Civil Liberties Union on behalf of 21 plaintiffs who either wish to get married or want their out-of-state same-sex marriage recognized. Importantly, Attorney General Kathleen Kane publicly announced that she would not defend the state against the lawsuit claiming that she found Pennsylvania’s ban “wholly unconstitutional.” The state will have Gov. Tom Corbett’s general counsel defend the state’s anti-gay-marriage law.

In Virginia, the ACLU says a lawsuit is currently in the works that would challenge the constitutionality of Virginia’s ban on same-sex and recognizing out-of-state same-sex marriages.


What changes will happen in the 13 states and Washington DC where same-sex marriage is legal?

We already discussed that same-sex couples can now transfer property from one partner to another without worrying about a federal gift tax.

Same-sex couples in marriage equality states are now eligible for Social Security’s spousal benefits. They can now apply for

  • Spousal retirement: if your spouse or ex-spouse is receiving or eligible for retirement or disability benefits and if you are at least 62 years of age, you may be able to receive money
  • Disability: if you cannot work because of a medical condition that is expected to last at least one year or result in death, certain family members can receive money
  • Survivor benefits: if you die, members of your family could be eligible for benefits based on your earnings

The claims processing instructions will allow for payment of claims when the claimant “was married in a state that permits same-sex marriage” and “is domiciled at the time for application, or while the claim is pending a final determination.”