More on Social Security Implications of DOMA


DOMA and Social Security: What are some of the implications?

On June 26, in a 5 to 4 decision, the United States Supreme Court found that Section 3 of the federal Defense of Marriage Act (DOMA) violated the equal protection clause of the Fifth Amendment of the U.S. Constitution as applied to persons of the same sex who are legally married under the laws of their state (Windsor, S.Ct., June 26, 2013, 2013-2). The majority opinion, written by Justice Anthony Kennedy, held that DOMA was unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.

The decision opens the door for same-sex married couples to enjoy many federal tax-related benefits previously available only to opposite-sex married couples. These include income tax benefits, estate and gift tax benefits, taxpayer-friendly employee benefits, and Social Security benefits.

Because of DOMA, same-sex married couples did not have the same benefits under the Social Security Act that opposite-sex married couples have enjoyed for many years. Unlike opposite-sex couples, for example, there are no survivor benefits for the surviving spouse of a same-sex married couple. Also, the divorced spouse of a formerly married same-sex couple cannot not claim benefits based on the earnings of his or her ex-spouse.

IMPACT: The Social Security Administration (SSA) has based federal rights to benefits on whether marital rights exist in the couple’s current state of residence rather than the state in which they were married. The impact of Windsor on the manner in which federal agencies will treat Social Security benefits remains to be sorted out.

Survivors’ benefits. When an individual dies, his or her surviving spouse may be eligible for Social Security benefits if the surviving spouse is age 60 or older, age 50 or older and disabled, or any age if he or she is caring for the decedent’s child who is younger than age 16 or disabled and entitled to Social Security benefits on the record of the deceased individual. With DOMA having been struck down, survivor benefits previously available only to opposite-sex married couples are now presumably available to same-sex married couples. The SSA is expected to provide guidance on this issue.

Divorced spouses. If an individual is divorced, his or her ex-spouse may qualify for Social Security benefits based on that individual’s earnings. Generally, a divorced spouse must have been married to the individual for at least 10 years and have been divorced at least two years. Additionally, the divorced spouse must be at least age 62, unmarried, and ineligible for an equal or greater benefit based on his or her own earnings or the earnings of someone else. These benefits are now presumably available to divorced individuals who were previously in a same-sex marriage. The SSA is also expected to provide guidance on this issue.

Death benefits. Lastly, the SSA pays a one-time death benefit of $255 to a decedent’s surviving spouse in an opposite-sex marriage or to a minor child. The SSA will presumably now pay the one-time death benefit to the surviving spouse in a same-sex marriage.