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Social Security Insight for Same-Sex Couples

What does same-sex marriage mean for Social Security?

By Alyson Dorosky, CSSCS

The legalization of same-sex marriage was a watershed event: rights and privileges of opposite-sex couples – including Social Security benefits – were now universal. But with Social Security, the devil is in the 2,700-plus rules.

A recent class action suit affected how Social Security must handle the applications of survivors of same-sex couples who weren’t allowed to marry before 2015 and its new approach to gender and Social Security records.

Alyson Dorosky, CSSCS, is head of Social Security Support for LifeYield. She has seen thousands of different Social Security scenarios in five years of working with advisors and their clients to customize filing strategies and maximize retirement income.

Alyson Dorosky

Let’s look at what same-sex couples can expect from Social Security and what they need to do to secure their benefits.

What Social Security benefits are available to same-sex couples and their families?

Social Security treats benefit applications by same-sex couples as it handles those by opposite-sex couples. Same-sex couples are eligible for the same benefits – spousal, survivor, family, and disability– as long as they meet the necessary qualifications.

Members of married same-sex couples filing for survivors benefits after the death of one spouse must have been married for at least nine months to qualify. And to receive spousal benefits, they must:

Have reached age 62 and have been married for at least one continuous year before filing.

File after the spouse whose earning record is the basis for the spousal benefit application has filed for their own benefits.

Some same-sex marriages have ended – or will end – in divorce. The same eligibility rules for divorced spousal benefits apply regardless of whether they were in same- or opposite-sex marriages. Note that spouses must have been married for at least ten years to be eligible.

The benefit rights of children, stepchildren and adopted children of same-sex couples also follow the same rules as those of opposite-sex couples.

You can find more information on other benefit qualifications on the SSA’s website’s information page for LGBTQ+ people.

What’s happened since the Supreme Court recognized same-sex marriage?

For some couples, the legalization of same-sex marriage came too late. They had lost their partners when marriage laws still discriminated against same-sex couples.

Class suits brought by nonprofit Lambda Legal, which advocates for the civil rights of LGBTQ+ people, led Social Security to change how it handles cases of survivors who never had the opportunity to wed their same-sex partners. Lambda has published a guide to the ruling and how affected individuals can apply for survivors benefits.

The U.S. Census Bureau estimated that there were nearly 1 million same-sex households in 2019, with about 58% of those couples married, and 42% not. That leaves many same-sex couples in the situation of being in committed relationships without marriage licenses – like many couples of opposite sexes.

Social Security qualifies those in common-law marriages for spousal and survivors benefits when the individuals live in states that recognize such marriages (a minority of states) or did so at the start of the marriage. It requires the individuals to complete a form, a “Statement of Marital Relationship” (form SSA-754), and supply an affirmation from a blood relative (form SSA-753).

Social Security and individuals who do not identify as male or female

You only have to skim the headlines or your newsfeed occasionally to know that gender issues are white hot. A study by the Williams Institute at the UCLA School of Law, published in June, estimated that 1.2 million adults in the United States identify as nonbinary. The majority are under age 29, urban, and white.

The SSA has responded to the changing landscape of sexual orientation and identification in a few ways:

It no longer requires legal or medical documentation of sex designation to receive a Social Security number. This past February, the SSA told its employees to accept evidence documents identifying an individual as non-binary for original and replacement card applications.

In March, the SSA announced that it would allow people to self-select their sex marker on their Social Security number record. Those who do will need to apply for a replacement Social Security card.

My advice for same-sex couples

When you’re considering retirement, reach out to the SSA to confirm your rights and benefits. This is particularly necessary if you are in a committed relationship but unmarried. Rules about common-law marriages are different from state to state.

If you had a past survivor application denied, follow Lambda’s advice on how to reach out to the SSA to have it reviewed again.

And, of course, every couple needs to consult each other and a financial advisor as they consider filing for Social Security benefits. The software can help individuals and spouses determine the best filing strategy to get the most out of their Social Security retirement benefits.

About the author: Alyson Dorosky, CSSCS

Alyson Dorosky, CSSCS, is head of Social Security Support for LifeYield. She has seen thousands of different Social Security scenarios in five years of working with advisors and their clients to customize filing strategies and maximize retirement income.