Can my partner now earn spousal benefits?

Published 5:00 am Friday, July 12, 2013

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Q: Can my domestic partner start receiving Social Security spousal benefits since the U.S. Supreme Court has overturned the Defense of Marriage Act?

A: Bruce Bell manages the Legal InfoLine for Gay and Lesbian Advocates and Defenders, a Boston-based nonprofit that has advocated for the legal affairs of the country’s LGBT population since 1984. The group works with several other LGBT and civil rights’ groups such as Lambda Legal, the Human Rights Campaign and ACLU to answer DOMA-related questions both before and after the Supreme Court issued its ruling in U.S. v. Windsor on June 26.

“Unfortunately, it’s a big unanswered question,” said Bell, who recommends same-sex couples apply for spousal benefits if they are old enough to qualify even though the Social Security Administration has not announced its post-DOMA rules and regulations.

According to the Social Security Administration’s website, a person’s husband or wife can receive spousal benefits that is equal to half of his or her total Social Security benefits each month provided he or she is at full-retirement age, which is 66 for people born between 1943 and 1954, 66 and a fraction of a year for people born between 1955 and 1959 and 67 for people born after 1960.

If a 66-year-old man is earning $2,000 a month through Social Security – an amount that’s based on how long he worked and how much he earned — his wife can receive up to $1,000 a month if she is also 66. She can receive a certain percentage of this amount each month if she signs up for spousal benefits between her 62nd birthday and her full- retirement age, according to the administration’s website. And she can receive full spousal benefits of $1,000 each month regardless of her age if the couple has child who is younger than 16.

A beneficiary’s divorced spouse and his or her surviving widow/widower can also receive Social Security benefits, according to the website.

These benefits could make a huge difference for the 11,773 same-sex couples who live in Oregon according to a report issued by the UCLA School of Law’s William’s Institute. But everything depends on how the Social Security Administration chooses to define marriage.

Bell said same-sex couples who are married and live in a state that recognizes gay marriage, like California or Washington, should easily qualify for Social Security’s spousal and survivor benefits now that the Supreme Court overturned DOMA. Though, Bell said, things aren’t that easy when it comes to people who live in states, like Oregon, that do not recognize same-sex marriage.

Bell said the Social Security Administration may choose to grant spousal benefits to same-sex couples who were married in a state that recognizes gay marriage even though they live in a state that does not. His organization has been working to make this policy, known as the “rule of celebration,” the standard when it comes to granting federal marriage-related benefits to same-sex couples.

Finally, Bell said, the Social Security Administration could also choose to let couples receive spousal benefits if they live in a state where the rules of intestate succession – which determine who receives a person’s property if he or she doesn’t have a will- treat them the same as a married couple. He said this policy would make the most difference in Oregon because the state grants these rights to couples who have filed a registered domestic partnership agreement regardless of their sex or marriage status.

“We won’t know what happens until the Social Security Administration comes out with a ruling about how they are going to do this,” Bell said. He says every federal agency that deals with marriage-related benefits or rules will likely choose its own course of action in the wake of the DOMA decision.

Bell said soon after the Supreme Court’s ruling, the Social Security Administration issued a statement asking same-sex couples to apply for spousal and survivor benefits so the administration can start processing those applications once it figures out what it’s going to do.

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