The bureaucracy continues to move slowly in regards to Social Security benefits for same-sex couples. The various government agencies and departments continue in a state of chaos as they try to understand the implications of the Supreme Court’s ruling on the Defense of Marriage Act (DOMA). Presently, the Social Security Administration is studying the ruling in light of applicable law with the Justice Department.
The Social Security Administration’s response to the DOMA decision falls into two broad categories. Category A individuals are same-sex couples, who were married in a jurisdiction which recognizes same-sex marriage. The jurisdiction may be in another country, like Canada, or in one of the 13 states which recognize same-sex marriage. Additionally, Category A individuals must also reside in one of the 13 states which recognize same-sex marriage. If both of these criteria are met, than the spouse is eligible for Social Security survivor and retirement benefits.
Category B individuals present a problem to the Justice Department and the Social Security Administration. Category B, are individuals who were married in a jurisdiction which recognizes same-sex marriage; however, these individuals do not reside in one of the 13 states which recognize same-sex marriage. The quandary is that the Act, which created the Social Security Administration uses a “place of residence” standard in deciding spousal benefits. So if the jurisdiction in which the individual resides does not recognize same-sex marriage, then the Social Security Administration cannot recognize the marriage as well.
What should same-sex couples do in light of the uncertainty? The Social Security Administration is urging same-sex couples to apply for benefits. This includes those individuals who reside in a state that does not recognize same-sex marriage. Individuals should apply for benefits as soon as possible. If it is ultimately found that they are eligible for benefits, then those benefits will be paid retroactively to the initial filing date.