Same-sex couples advised to file for Social Security Disability benefits

In a press release on August 9, 2013, the Acting Commissioner of Social Security announced that, due to the U.S. Supreme Court's decision in U.S. v. Windsor that declared Section 3 of the Defense of Marriage Act unconstitutional, the Social Security Administration is now processing some retirement spouse claims for same-sex couples and paying benefits where they are due. SSA will be working with the Department of Justice to develop and implement additional policy and processing instructions regarding same-sex couples. To that end, SSA encourages individuals who believe that they may be eligible for Social Security benefits to apply now, to protect against the loss of any potential benefits. SSA will process claims as soon as additional instructions become finalized.

An important distinction

The IRS only recognize those same-sex couples who have memoralized their union through marriage (technically, Rev. Rul. 2013-17 states that, for federal tax purposes, the term "marriage" does not include registered domestic partnerships, civil unions, or other similar formal relationships recognized under state law that are not denominated as a marriage under that state's law, and the terms "spouse," "husband and wife," "husband," and "wife" do not include individuals who have entered into such a formal relationship; this conclusion applies regardless of whether individuals who have entered into such relationships are of the opposite sex or the same sex). However, SSA urges immediate filing since it is still working with the Department of Justice on its own policy; SSA states that the filing date is used to determine the start of potential benefits and thus earlier filing means an earlier start to benefits.

An Ohio update on same-sex rights

Although Ohio bans same-sex marriage by statute and by its constitution and also claims to not recognize other states' same-sex marriage, a federal judge ruled in July that two Ohio men's Maryland marriage would be recognized in Ohio, allowing a Cincinnati man to be buried next to his dying husband. The federal judge accepted the argument that Ohio law recognizes marriages from other states that are against Ohio public policy, including marriages between first cousins and between people too young to marry in Ohio. This case has grown into a class action lawsuit to require Ohio to recognize same-sex marriage on death certificates. Thus, like the rest of the nation, the law on this area is still very unsettled.

Social Security Disability law is often confusing-even in situations where SSA is not reviewing its own regulations, as it is with regard to same-sex benefits. Consulting an attorney knowledgeable with the ins and outs of Social Security law will help you if you have any questions about your eligibility for benefits or how to follow SSA's rules and regulations.