In June the Supreme Court determined that the Defense of Marriage Act (DOMA) contradicted the Fifth Amendment, and therefore ruled it to be unconstitutional. Employment discrimination lawyers and other human rights advocates are now weighing in on what these means for workers and their benefits. During the period where DOMA was actively in effect, the federal government did not recognize the legitimacy of same-sex marriages that took place in states where they are legal, such as Connecticut, Massachusetts and Washington. This had direct consequences for those who may have been eligible for federal benefits, since the Social Security Administration could not pay many of these to people who would have qualified if married to a member of the opposite sex. Since this part of the law has been dismantled, the SSA must now treat same-sex married couples in the same way as all other married couples.
Married individuals can qualify for a number of Social Security benefits that non-married individuals cannot receive. The two primary programs include survivor benefits and benefits for disabled widows and widowers. After the loss of a spouse, the survivor can receive benefits on a deceased spouse’s earnings after age 60 (or age 50 if they are disabled). Such benefits, formerly available only to opposite-sex couples, should now be granted to same-sex couples as well. Stepchildren may now also be eligible for benefits on a worker’s earnings if that employee has died or is receiving Social Security retirement or disability benefits.
The SSA presently draws on state law to establish if an individual is legally married. The agency observes laws of the state where a person is a resident at the time of death to determine the validity of a marriage. So hypothetically, a same-sex couple could get married in Massachusetts (or any other state that’s legalized same-sex marriage) but relocate to a state where their marriage is not recognized. Under the existing SSA rules, the Administration would determine the validity of the marriage based on the laws of the state where that person lived at the time of their death.
Initially, this seems to suggest that the legitimacy of same-sex marriages could be denied (and benefits declined) unless the couple moved. But the SSA also recognizes something known as a “deemed marriage” provision. In the most basic terms, when both partners consider themselves to be married, and behave like spouses, and the only factor invalidating their marriage when the ceremony takes place is “a legal impediment not known to the applicant”, then Social Security will recognize the marriage as legitimate for benefit purposes.
At this point, no one knows how Social Security will use these provisions, or what the final outcome will be. Yet for many Americans who were experiencing discrimination and being denied benefits because of the person they love, it is now clear that they will be entitled to equal SS benefits.