Social Security to pay survivor benefits for same-sex couples

Welcome news to gay rights advocates, but benefit eligibility still relies on states' definition of marriage

A wedding cake with a male couple is seen at The Abbey restaurant at a celebration of the over100 same-sex marriages performed today in West Hollywood, California, July 1 2013.
Robyn Beck/AFP/Getty Images

The Social Security Administration announced Monday that it has started paying out benefits to some surviving spouses of same-sex marriages, in a move that comes six months after the Supreme Court struck down the federal Defense of Marriage Act (DOMA).

The court ruled in Windsor v. United States that DOMA, which had previously prevented federal government from recognizing same-sex marriages, was unconstitutional and that all legally-married same-sex couples, regardless of where they live, would be considered married by the federal government.

"I am pleased to announce that, effective today, Social Security is processing some widow’s and widower’s claims by surviving members of same-sex marriages and paying benefits where they are due,” said Carolyn Colvin, the acting commissioner of Social Security, in a statement.

“In addition, we are able to pay some one-time lump sum death benefit claims to surviving same-sex spouses," said Colvin. "As I stated shortly after the Supreme Court decision on Section 3 of the Defense of Marriage Act, our goal is to treat all Americans with dignity and respect.”

Anyone who was married to their partner at the time he or she died, or anyone who was legally married for at least 10 year but later divorced, is eligible for Social Security benefits.

But Social Security uses a state's definition of marriage to determine eligibility. Consequently, a couple that married in a state where gay marriage is legal, but lives in a state that does not recognize their marriage, would not be considered married under current rules.

The Department of Justice is working with Social Security, along with numerous other federal agencies, to update the rules to reflect the changes in the law following the DOMA ruling.

The conflict is one of the main reasons the agency has trailed behind others in updating its policies.

“We ask for continued patience from the public as we work closely with the Department of Justice to develop policies that are legally sound so we can process claims,” said Colvin.

Claims for benefits in this scenario are being placed on hold, according to the agency's Program Operations Manual System, which was released with the announcement.

People filing for benefits who reside in a non-gay marriage state are still eligible for the benefit if their spouse died while living in a state that recognizes their marriage.

The situation is similar to the current rules guiding spousal retirement benefits, which are also being put on hold in states that do not recognize saame-sex unions. It is unclear if the claims can be processed with the DOMA ruling or if additional legislation will be needed.

“This is welcome news from the Social Security Administration but as they point out, this is not the end of the road in applying the Windsor decision to benefits owed to same-sex couples,” Michale Cole-Schwartz, spokesperson for the Human Rights Campaign told the Washington Blade. “We look forward to continuing our work with them to ensure that as many benefits as possible are made available to couples expeditiously.”

Colvin encouraged anyone who believes they may be eligible for the benefits to “apply now to protect against the loss of any potential benefits." She added that claims will be processed as soon as her agency receives final instructions on how to handle the claims.

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