Like many issues involving conflicts between state laws, federal laws and the related on-going legal proceedings, social security is currently caught up in a political and legal quagmire. The issue at hand pertains to social security benefits for same-sex couples.
On June 26, 2013, the U.S. Supreme Court ruled in the "Windsor case" that a ban on federal benefits for gay couples, enacted under the Defense of Marriage Act ("DOMA), was unconstitutional. As a result, same-sex marriages were recognized under the law and, for purposes of social security benefits, all claims filed on or after that date (including pending claims) would be governed by the Windsor rules. Same-sex couples would be eligible for the same benefits available to heterosexual couples.
So it's settled then, right? Not so fast. At present, 37 states have legalized same-sex marriage but 13 have still banned it. Given that social security is a "federal" and not a "state" program surely same-sex couples anywhere in the U.S. should be afforded the right to receive all federal benefits, including social security, which the Supreme Court just approved, correct? Apparently that is not the case.
Although social security is a federal program it is administered at the state level. In those states where same-sex marriage is not "yet" legal, applications for benefits by same-sex couples are not being processed. The U.S. Attorney General's office is actively working to change that and will persist until all states recognize and process social security benefits which same-sex couples are entitled to under federal law.
So what happens today if a same-sex couple applies for social security spousal benefits? Well, it depends. For example, let's assume Robert and Michael were married in MA (a state that recognizes gay marriage) and they are domiciled in MA when Robert files for spousal benefits off of Michael's record. Assuming they otherwise meet all the criteria for spousal benefits, then Robert will receive social security spousal benefits off of his spouse Michael's record.
However, if Robert and Michael (who were legally married in MA) moved to Texas (a state which still does not recognize gay marriage) and filed for social social security spousal benefits in Texas, while domiciled in Texas, they would not receive these benefits. Even though they meet all other criteria for entitlement, the social security administration in Texas will hold the claim since they were domiciled, at the time of filing, in a state that does not recognize same-sex marriage.
It's important to note, however, that same-sex couples who are domiciled in a state that does not currently recognize same-sex couples should still file for benefits in order to establish the date of their request. This way, if (and most likely "when") those states were to subsequently recognize same-sex marriage, couples could petition for back benefits based on their filing date.
There remains much confusion and likely inconsistent enforcement of the rules surrounding same-sex benefits. For example, assume Mary and Helen were married in New York, a state that recognizes same-sex marriage. At full retirement age, while domiciled in New York, Mary files for spousal benefits on Helen's record. However, while the application is pending, Mary and Helen move to Texas and become domiciled in Texas, a state which still does not recognize same-sex marriage. Will Mary receive her otherwise eligible social security spousal benefits? Yes, Mary's claim will be approved because when it was filed Mary and Helen were domiciled in a state (New York) which recognizes same-sex marriage. The date of filing in New York is the date used to determine month of entitlement.
Although the highest court in the land has already recognized the legal validity of same-sex marriage, the battle to enforce the rights and privileges for same-sex couples continues on even in the social security system, one of the largest and most vital of federal entitlement programs. Same-sex couples share the same financial issues and challenges in retirement and have paid into the system in the same manner as heterosexual couples. They should be afforded the same rights and privileges due any legally eligible beneficiary in the social security system. It's time for all states to enforce the legal rights and privileges of all eligible recipients of social security benefits as was clearly stated and mandated by the Supreme Court.
Ash Ahluwalia, NSSA, CCSCA, MBA