On June 26, the U.S. Supreme Court held that section 3 of the Defense of Marriage Act (DOMA) is unconstitutional as a deprivation of equal protection under the Fifth Amendment. United States v. Windsor, 570 U.S. ___ (2013). Section 3 defined “marriage” and “spouse” to exclude same sex partners. This decision will impact the eligibility of dependents and survivors for Social Security benefits. But the Social Security Administration has not issued guidelines and policies to implement this decision.

So far the SSA is authorized to “take and hold all claims by individuals who are filing benefits that are dependent upon the existence of a same sex marriage (e.g., spouse claims, survivor claims, and some child claims).” Social Security Administration staff can also take appeals “for previously denied claims based on non-recognition of a same sex-marriage and hold them until further instructions.” (Emergency Message EM-13022 [June 27, 2013.])

The two main areas of Social Security eligibility that will be impacted by Windsor are:

• Who is considered a “spouse” of the wage earner?

•Who is considered a “child” of the wage earner?

An example of the kind of situation that may arise: Same-sex couples who were validly married in a state authorizing same sex marriages move to a state that does not recognize same-sex marriages at the time of application (in the case of a wife’s or a husband’s benefits) or at the time of the insured worker’s death (in the case of surviving spouse benefits).

In an amicus curiae brief, Professor Robert E. Rains from the Pennsylvania State University Dickinson School of Law wrote that the resolution of this question may depend on whether the most relevant state has a “mini DOMA,” like Pennsylvania, which says it does not recognize a same sex marriage from any other state (a majority of states have such mini-DOMAs). In that case, the law of the relevant state of the insured person’s permanent residence when the claimant’s application is filed for or, if earlier, when the insured person died, is applied. For example if two women who were Massachusetts residents are married in that state but later move to Pennsylvania and the insured person dies there, the SSA would not recognize the other individual (i.e., the claimant) as a surviving spouse under its rules.

Lou Vigorita practices social security and workers’ compensation law from his Ventura based  Law Offices of Lou Vigorita.

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