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WashingtonLawHelp.orgWashington LawHelp

Same-Sex Couples and Social Security

Authored By: Northwest Justice Project LSC Funded

Read this if you are or were married (OR in a registered domestic partnership) with someone of the same sex AND live in Washington. #7202EN

Contents

Read Online

 

When should I read this?

If both of these are true:

  • You are or were married to, or are in a registered domestic partnership with, someone of the same sex.

  • You live in the state of Washington.

*"Spouse" here also means someone in a registered domestic partnership. 

You could get Social Security benefits owed to a spouse, including:

  • Spousal retirement benefits

  • Spousal disability benefits

  • Lump-sum death benefits

  • Survivor benefits

To apply for benefits, contact Social Security.

 

The Social Security worker I spoke to said I am not eligible.

Go ahead and apply anyway. Some Social Security workers may not be aware that, for example, someone in a same sex registered domestic partnership (no marriage certificate) could get Social Security benefits from their spouse or partner's work record.  Think about finding a social security lawyer to help you.

 

What are spousal Social Security retirement benefits?

Social Security bases these benefits on your spouse's earnings record only. You can apply for these if you and your spouse are both living. If you meet age and other requirements, you can get the greater of:

  • Your own Social Security retirement benefits, or

  • Half of your retired spouse's benefit. You may get less if you start getting benefits before full retirement age.

     

Only my spouse has a work history. Does that change things?

A little. You will get a spousal benefit of an extra half of your spouse's retirement benefit while you both are alive. You may get less if you start getting benefits before full retirement age.

 

What are survivor benefits?

A worker's widow or widower (surviving spouse) can get benefits based on the worker's earnings record, if you meet age or other requirements. You can get the greater of:

  • Your own Social Security retirement benefit, or

  • Your deceased spouse's Social Security benefit

You can use the survivor benefit to delay (put off) retiring on your own record. You earn delayed retirement credits and increase your own benefit amount.

 

I am a surviving spouse. Could I get survivor's benefits?

Yes. Read Social Security Survivor Benefits to learn more.

 

Could our children get survivors' benefits?

Yes. Read Social Security Survivor Benefits to learn more.

 

What is the lump-sum death benefit?

It is a one-time payment to a surviving spouse or, if there is no spouse, a child under age 18. You must also meet other requirements. If no spouse or child meets the requirements, there is no lump-sum death payment. Read Social Security Survivor Benefits.

 

I am a surviving spouse. Am I eligible for the lump-sum death benefit?

Yes. Read Social Security Survivor Benefits to learn more.

 

What if we never married?

If you registered as domestic partners in Washington State after July 22, 2007, you should apply for Social Security spousal benefits.  Social Security's rules (GN 00210.004 Non-Marital Legal Relationships) apply to both spouses and registered domestic partners.  Social Security accepts retirement, surviving spouse, and lump-sum death payment claims for same-sex couples in non-marital legal relationships and pays benefits where due.

 

We got married in a foreign country. Could I get these benefits?

Maybe. Social Security recognizes some foreign same-sex marriages in deciding if you can get benefits.  If you believe you could get Social Security benefits, apply now. This will protect you against the loss of any potential benefits.

 

I am divorced. Could I still get benefits?

Maybe. You can get benefits on a former same-sex spouse's earnings record if both these are true:

  • The marriage lasted at least ten years, if you were married in the U.S.

  • Your spouse meets age and other requirements.

You could get:

  • Spousal retirement benefits

  • Spousal disability benefits

  • Survivor benefits

*Same-sex marriage was first permitted in the U.S. on May 17, 2004. The earliest you could claim these benefits would be May 2014.

 

I applied before. They denied my application.

Social Security has since changed how it handles these cases. If Social Security denied your application before June 26, 2015, they will reopen it. This might help you if you tried to apply before that date, and can prove Social Security staff talked you out of doing so.

If Social Security has not contacted you about this, call them. When you talk to them, refer to POMS GN 00210.030.  

 

I already got benefits before Social Security started recognizing same-sex marriage. What can I do?

You can:

  • Withdraw your original application. If you are within twelve months of starting benefits, you can file a request to withdraw your application (form 521) and pay back what you have already gotten. If Social Security approves your request, ask them to treat you as if you had never started benefits. Normally, when you apply for Social Security, you only get one "do-over." You should ask them not to count this "do-over" against you because it is the result of a major change in the law.

  • Go back to work. If you are under your Normal Retirement Age (NRA) and outside the twelve-month window since starting benefits, you can go back to work. Then Social Security will automatically apply its "earnings test" and lower your benefit if your wage earnings go over a set amount. Once you reach your NRA, Social Security will permanently increase your monthly benefit to account for the months they withheld benefits.

  • Voluntarily suspend. Once you reach your NRA, you can choose to suspend (pause) your Social Security income and get credits for delaying your income when you restart your benefits later, but no later than age 70.

*The advice in this section applies to Social Security only. It does not apply to SSI. 

 

Where can I find Social Security's rules?

The Social Security website (www.ssa.gov) links to its regulations, handbook, and Program Operations Manual System (POMS).

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Last Review and Update: Feb 24, 2021
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