“DOMA and Social Security: What it Means One Year After the Ruling,” Unicorn Booty, February 2015

DOMA and Social Security: What it Means One Year After the Ruling

Milo Todd

This post originally appeared in Unicorn Booty, February 2015.

Starting on September 21st 1996, the Defense of Marriage Act (DOMA) was a federal law in the U.S. allowing individual states to refuse recognition of same-sex marriages. Legally, this meant that same-sex married couples were largely unable to collect spousal benefits. But on June 26th 2013—almost 17 years later—the U.S. Supreme Court finally struck down DOMA and declared same-sex married couples of age to collect the same benefits from Medicare and Social Security as different-sex married couples.

Well, almost. Now nearing a year and a half since the DOMA ruling, the Social Security Administration (SSA) has continued to be a confusing topic for senior citizens due to technicalities and definitions of what does and doesn’t constitute marriage. So when can seniors collect? When can’t they? What happens if they were legally married, but now live in state that doesn’t recognize their union?

Here’s where Social Security has left seniors since the DOMA ruling.

How Social Security affects couples who were legally married, but now live in a state that doesn’t honor their union. The definitions of legal marriage for the SSA include state-of-residence restrictions, meaning that for the past year the SSA has refused to provide benefits to legally married couples who currently live in a state that doesn’t recognize same-sex marriage. As of this June, however, the SSA announced that spousal benefits are being extended to include states that at least recognize civil unions or domestic partnerships. States that disregard all of these pairings, however, continue to be omitted from providing same-sex spousal benefits if the couples lives within their borders.

That being said, since this summer, several states have begun to legally recognize same-sex marriage, totaling 32 out of 50 states. As of later October 2014, 18 states still have same-sex marriage banned, but 5 of those states are currently in the process of appeals. So well over half of the country now allows Social Security benefits for same-sex seniors. It’s not a perfect story, but at least it’s something.

In the event that partners were in a civil union or domestic partnership, but didn’t get legally married. While legally married couples can receive spousal benefits from any state that recognizes same-sex marriage, civil unions, or domestic partnerships, couples partnered by the latter two are not yet able to receive spousal benefits from the SSA if they live in a state that only recognizes same-sex marriage (and not civil unions or domestic partnerships). As of this March, the amount of states that recognize civil unions or domestic partnerships (with or without the addition of recognizing legal gay marriage) stands at 11.

How seniors can ensure they receive the benefits they deserve. Seniors can best find out if they’re eligible by knowing what kind of union they have with their partner and what types of unions are recognized by their residential state. Quite simply, if their state recognizes their union, they can file for Social Security and likely begin to receive benefits. Even if a couple lives in a state where they  aren’t sure they can collect spousal benefits, programs such as SAGE (Services & Advocacy for Gay, Lesbian, Bisexual & Transgender Elders) and GLAD (Gay & Lesbian Advocates and Defenders) encourage them to nonetheless file for Social Security. In that way, if and when their state recognizes their union or it turns out they were eligible all this time, they may be able to collect retroactive pay.

As of June of this year, the Obama Administration has declared that amendments to the SSA are sorely needed to help ensure all legal couples can benefit from the DOMA ruling.

But what about Medicare? Thankfully, despite the SSA issues, Medicare isn’t anchored by state-of-residence restrictions and has provided the same spousal rights for all legally married same-sex couples as different-sex couples since the DOMA ruling. However, this doesn’t necessary mean the same for those who are in a civil union or domestic partnership, but the concepts are too intricate to get into here. “The rules are complicated and vary for each state depending on when you entered into the [civil union or domestic partnership],” said SAGE, “so if you think you might be eligible for this benefit, you should apply.”

For more information on spousal benefits after DOMA, check out the in-depth guide from GLAD on Social Security, SAGE’s Q&A on Medicare, GLAD’s webinar on how to file taxes or Social Security, or the National Resource Center’s rundown of potential benefits for same-sex couples filing their taxes jointly.

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