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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

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Update: Effective February 19, 2021, thanks to two recent court decisions, some more same-sex partners and spouses may now be able to get Social Security survivors’ benefits:

  • Persons who would have been married to their same-sex partner for at least nine months before their death, but could not marry because of discriminatory marriage laws where they lived. (Thorton v. Saul, a case out of the state of Washington)

  • Persons who married their same-sex spouse, but could not be married for at least nine months before their spouse’s death because of discriminatory marriage laws where they lived. (Ely v Saul)

Social Security is now accepting claims for benefits even while the cases are on appeal. You should contact them if you think you may be eligible or are now old enough to get benefits. 

 

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. 

 

What will I learn? 

You may be eligible to get the 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. Some Social Security workers may not be aware that, for example, people in same sex registered domestic partnerships (no marriage certificate) can get Social Security benefits from their spouse or partner’s work record.  Go ahead and apply even if the Social Security worker says you may not be eligible.  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 apply with Social Security to claim 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.

     

What if only my spouse has a work history? 

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 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 retiring on your own record. You earn delayed retirement credits and increase your own benefit amount.

 

I am a surviving spouse. Am I eligible to get survivor’s benefits? 

Yes. Read Social Security Survivor Benefits to learn more. 

 

Are our children eligible to 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, who meets 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 to get 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. New rules (GN 00210.004 Non-Marital Legal Relationships) apply to both spouses and registered domestic partners.  Social Security now processes retirement, surviving spouse, and lump-sum death payment claims for same-sex couples in non-marital legal relationships and pays benefits where they are due.

 

What if we got married in a foreign country?

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

 

What if I am divorced?

You can get benefits on a former same-sex spouse’s earnings record if both of 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 be entitled to:

  • Spousal retirement benefits.

  • Spousal disability benefits.

  • Survivor benefits.

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

 

What if I applied before, but they denied my application?

Social Security has since changed its policy in a way that could help you. If Social Security turned down 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 discouraged you from doing so.
If Social Security has not contacted you about this, call them. When you talk to them, refer to POMS GN 00210.030.  

 

What if I already got benefits before Social Security started recognizing same-sex marriage?

You can:

  • Withdraw (take back) your original application. If you are within twelve months of when you started getting benefits, you can fill out and file a request to withdraw your application (form 521). You will have to pay back what you have already received. If Social Security approves your request, ask them to treat you as if you had never started benefits. Each Social Security applicant only gets one “do-over.” You should ask that they not 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, and you go back to work, 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 raise your monthly benefit to make up for the months they withheld benefits.

  • Choose to suspend. Once you reach your NRA, you can voluntarily (choose to) suspend 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, not SSI. 

 

Where can I find Social Security’s rules?

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

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Last Review and Update: Apr 06, 2021