For Now, Social Security Benefits Limited to Same-Sex Couples in Marriage Equality States


Some big, late-night news this weekend from BuzzFeed's Chris Geidner: new policy guidelines established by the Social Security Adminstration after the Supreme Court's invalidation of the Defense of Marriage Act will limit benefits to only those same-sex couples who live in states with marriage equality. From Geidner's report:

As of Friday, a new section for “Windsor Same-Sex Marriage Claims” — named after the Supreme Court case of United States v. Windsor, which resulted in a part of the Defense of Marriage Act being struck down — was added to the Social Security Administration’s Program Operations Manual System (POMS), which the agency describes as the primary source of information used by Social Security employees to process claims for Social Security benefits.

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

As Geidner points out, the SSA had announced in a press release earlier late day that it would be making "some" payments to same-sex couples in valid marriages and praised the Supreme Court's ruling as a victory for fairness and equality.

In an update to his post early Saturday morning, Geidner linked to Volokh Conspiracy blogger Will Baude, who hypothesized in his own post on the legal analysis site that the SSA's decision was predicated in part on a specific statute pertaining to marital law as it applies to social security claims:

An applicant is the wife, husband, widow, or widower of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual is domiciled at the time such applicant files an application.  [emphasis Baude's]

In response to the Supreme Court's DOMA decision, a majority of federal agencies–such as the Department of Homeland Security and the Office of Personnel Management–have opted to look to the laws of the state in which a couple was married as opposed to the state of the couple's residence in order to determine marital status. These determinations have taken place largely through executive review alone.

If Baude is correct, however, the SSA's hands may essentially be tied by the statute in question. That would mean any fix for the issue will likely need to be a legislative one.


  1. Alex Parrish says

    More red-tape and hoops-to-jump-through for Gay and Lesbian couples. Legislative action is not likely to solve this in the lifetime of anyone alive today — this is going to end-up being resolved in the courts. Here we go again… I’m so f**king sick of this s**t!

  2. jtramon says

    A bit of a confusing issue, so not sure if my reasoning is correct-

    Perhaps a temporary solution: “move” back to marriage state, get domiciled, THEN submit claim?

    Wonder how long it’s going to take to fix this.

  3. JY says

    This is actually GOOD news in disguise. These couples pay into the system and are married elsewhere, so they have a HELL of a lawsuit on their hand that’s borderline impossible to lose. It’s annoying to have to wait, but this could be the straw that breaks everything open.

  4. K in VA says

    This won’t get a legal fix as long as Republican legislators are dependent on the votes of serious homophobes. So we’re talking about more lawsuits going to the Supreme Court, which means 4-5 years until resolution, which means at that time if we hope to win we’d need today’s court or new justices appointed by Obama or a successor Democrat.

  5. K says

    Yeah, everyone can just pick up and move whenever they need to get benefits. Ugh. I feel so stupid for thinking the SCOTUS ruling was going to be a fix. So stupid.

  6. K in VA says

    I’m troubled that SSA and everybody writing about this seems to be ignoring valid marriages from other countries. Granted, they’re still only valid in this country if you’re in a marriage-equality state, but they shouldn’t be ignored.

  7. John says

    And what about a person that marries a person in a foreign country that allows for gay marriages and the american dies. Does the foreigner get to receive SSA benefits?

  8. K says

    JY, why will multiple new lengthy expensive court cases be a good thing, aside from the fact that lots of lawyers will make money?

  9. Alex Parrish says

    @K — This is part of a new jobs program called “AFEA” — the Attorney Full-Employment Act. We pioneered it here in Wisconsin right after we elected Snot Walker as Governor and our lawyers have been a-hoppin’ ever since.

  10. Sean in Dallas says

    Not sure how the government can get away with this…SSA benefits are federal benefits and my new marriage is federally recognized.

    Shouldn’t matter where you live.

  11. Will says

    @K – probably because the courts are the only way this will be resolved any time soon. Your federal government is so gridlocked it needs to be forced to do anything good.

  12. JY says

    Will’s exactly right. I don’t believe the GOP and a decent segment of the Dems for that matter will take care of business. It’s up to the judiciary to force their hand. Is it a good thing? No. Is it better than rallying at the offices of do-nothing elected losers who don’t get anything done? Sadly, yes.

  13. candideinnc says

    Back to the courts. On the basis of the Windsor decision, the laws of the states will be shown to be punitive and designed only to denigrate a minority. On the basis of that phrase of that decision, these rules must be found to be unconstitutional.

  14. ldfrmc says

    My husband and I (both of us men) are retired, on Social Security now. We’ve been together 38 years. Domestic partners since 2000. Married (California) 2008 when we finally could.

    He started Social Security in 2001. I started in June 2013, but applied in February 2013 (“at the time such applicant files an application”).

    Do either or both of us get survivor’s benefits when one of us dies? Can we move to another state (any state) and continue to get the same benefits?

    Why is the government telling gay couples who are married they have to plan when and where they can get married, or die to get or continue getting the same Social Security benefits?

    Straight married couples do not have to jeopardize their benefits by being made to wait, being told not to move out of state once married, where or when to die.

  15. Zlick says

    JY nailed it. This is a successful string of court cases just waiting not to long to happen. (Though of course the wheels of justice grind slowly and the resolution may take years.)

    And K, this is a good thing for people besides lawyers because it’s the ONLY potential avenue of success for gay couples living in states that – for now – don’t have marriage equality.

  16. JMC says

    Hopefully by some miracle democrats retake the majority at the misterns so some comprehensive legislation to clear up all these legal headaches can be passed..

  17. K says

    So this announcement is good because the law has been clarified? Is that it? There’s something to contest on legal grounds? Thanks for the smile, Alex.

  18. disgusted american says

    hey Merikkka – how about you LIVE UP TOO what you espouse to everyone on a daily basis- almost to the point of ” I wanna Throw Up” ….what ever happened to LIBERTY & JUSTICE FOR ALL???? …or is that for Heterosexuals ONLY?

  19. Jack M says

    Leaving same-sex marriage laws up to the individual states has now come back to bite the Feds in the butt. The question is, how long will they endure the mass confusion that will result before laws are standardized?

  20. Hey Darlin' says

    I’m with those thinking this will trigger state level lawsuits. If your state is standing between you and a federal benefit and using an ideology found to be unusable at a federal level to justify your “special” treatment, that is a HUGE mistake.

    I really think this is an invitation by the federal government to fight for equality through the courts. The federal government can’t force the states hand into equality but it can certainly hold them accountable for restricting benefits. Fighting states that don’t want to give their citizens access to equal federal programs they PAID INTO. State rights shouldn’t supercede benefits you bought from the government when you paid into the social security program through the same state that’s now restricting your federal access. Along with the state level government, can’t we also sue organizations attempting to force upon us undue suffering due to restricting our equal access by purhasing politicians to push their agendas.

    In the mean time, the right has decided, through their political control, to cost ALL taxpayers in the state even more through state lawsuits they could avoid right now. Who’s side are they really on, who are they really “protecting”?

  21. Hal says

    We all need to work sure that the Republican Party and the Religious Right (they are one in the same) are defeated.

  22. Jill5443 says

    This does seem to be the right decision by SSA, according to the law. Like NMIKE1969 just said: “Live in a bigoted and backwards state? Move to a decent state.”

  23. JONES says

    ‘Live in a bigoted and backwards state?’

    Register. VOTE

    The religious right is only 28% of registered voters in the US. They can be defeated if we all make voting a must do in 2104. It’s voting apathy that is killing us.

    Start calling on friends and family now. Register early. When you go to the polls take a friend with you to make sure they vote. Voting apathy is killing us.

  24. Buckie says

    Telling people to move, that deserves a punch in the face.

    You’ve got what freedom you have to be the dirtbag you are because people stayed put and fought. Never forget that. You weaselly little insignificant ingrates.

  25. says

    What about Americans living abroad, in countries that recognize their marriages? Can we get an update on this group, Towleroad?

  26. Tonyinstpete says

    It is outrageosly unrealistic to expect that GLBT seniors should have to make an expensive move away from families and friends in order to qualify for what are FEDERAL benefits. Many of us here in Florida, in fact, came from other states and paid the majority of our payroll (FICA) taxes while working in marriage equality states such as NY, MA,CA, and MD.

    I would hope that the Human Rights Campaign Fund will pay some attention to this issue and try to work for a federal legislative solution through selective campaign funding, the only way to get to most of our Congress members I fear.

  27. fasteddie says

    When a man and woman are married and both apply for social security, one of them will lose 50% of their monthly benefit.
    Wouldn’t the same apply to a Gay couple.
    Fair is fair. Gays both want to be covered under their insurance and Retirement funds as a married couple. Social security benefits should also be ruled as a married couple either man & woman or Gay.