SAME SEX MARRIAGE & SOCIAL SECURITY BENEFITS

THE SSA RECOGNIZES SAME SEX MARRIAGES

Same sex marriage is recognized by the SSA for the purposes of benefits. On June 26, 2015, the U.S. Supreme Court issued a decision in Obergefell v. Hodges, holding that same sex couples have a constitutional right to marry in all states. Also, in matter what state in which they are married, they have the right to have their marriage recognized by other states.

The SSA recognizes the marriages of same sex couples in all states and they also recognize some non-marital legal relationships. For example, they recognize common law marriage if your state accepts common law marriage. Common law marriage occurs when a couple holds themselves out as married, but they are not legally married. They also recognize some civil unions and domestic partnerships.

The SSA also recognizes same sex marriages and some non-marital legal relationships that are established in foreign countries. They recognize the marriages for purposes of determining eligibility to Social Security benefits, Medicare benefits, and Supplemental Security Income benefits.

WHY IS SAME SEX MARRIAGE IMPORTANT FOR SOCIAL SECURITY BENEFITS?

Your marital status is important for your entitlement to Social Security retirement, survivors benefits and Medicare benefits. It is also important for SSD and SSI benefits. You or your spouse could be eligible for SSD benefits, or a higher benefit amount based on your marital relationship. Your children or stepchildren could also qualify for benefits based on their relationship to a worker.

For some surviving spouses, divorced spouses, and adults who developed a disability during childhood, benefits could end if they marry. Marriage may also affect your ability to qualify for SSI benefits or reduce your payment amount.

TYPES OF SOCIAL SECURITY BENEFITS FOR SAME SEX COUPLES

Your Social Security taxes pay for three kinds of benefits: retirement, disability, and survivors benefits. If you qualify for retirement or disability benefits, then other members of your family might also receive benefits. If you are married or entered into a non-marital legal relationship, and you think you might qualify for benefits, then you should apply right away. You can learn more about Social Security benefits for women who marry.

You should apply for benefits even if you are not sure that you qualify. Applying now will protect you against the loss of any potential benefits by preserving your filing date. The SSA will use this date to determine when your benefits may potentially start. Of course, you can apply if you are not sure that you qualify for benefits. However, if you are working or have no medical evidence you will not win SSD benefits.

If you have a personal my Social Security account, you can get an estimate of your personal retirement benefits and see the effects of different retirement age scenarios. If you don’t have a personal my Social Security account, create one at www.ssa.gov/myaccount.

SURVIVORS BENEFITS FOR SAME SEX COUPLES

More same sex couples may now qualify for Social Security survivors benefits. If you were in a same sex marriage with a spouse who passed away, then you may qualify for Social Security survivors benefits based on the work record of your partner.

A 2021 policy change offers past due Social Security survivors benefits to some same sex couples who lost their partners before the establishment of marriage equality. To be eligible, you technically must have filed an application for Social Security survivors benefits prior to November 25, 2020, and been denied due to laws that were against same sex marriage.

You may qualify for survivors benefits if either of the following are true:

• You would have been married at the time of death of your partner if state laws hadn’t kept you from doing so. 
• You would have been married longer if not for unconstitutional state laws that kept you from marrying earlier.
• You were married in a state that recognizes same sex marriage, even if you lived in a state that did not, and you were married for 10 years or more.

SOCIAL SECURITY BENEFITS FOR YOUR FAMILY

When you start getting Social Security retirement or SSD benefits, then other family members may also qualify for benefits. For example, the SSA can pay benefits to your spouse, unmarried minor children, or children with disabilities.

If you become the parent of a child (including an adopted child) after you begin getting benefits, then let the SSA know about the child. That way the SSA can decide if the child is eligible for benefits.

The SSA may ask you to provide documents to determine if your child is eligible for benefits:

• The child’s birth certificate or other proof of birth or adoption;
• Proof of the worker’s marriage to the child’s natural or adoptive parent if the child is the worker’s stepchild;
• Proof of the child’s U.S. citizenship or lawful alien status if the child was not born in the United States;
• W-2 forms and/or self employment tax returns if the child had earnings last year; and
• If the worker is deceased, proof of the death of the worker and U.S. military discharge papers.

OTHER LEGAL BENEFITS THAT SAME SEX COUPLES HAVE THROUGH MARRIAGE

For many years, same sex couples did not have access to the same legal protections that opposite sex couples had. Here is a list of some of the benefits that same sex couples now have through marriage:

1. Legal Recognition: Same sex couples are legally recognized as spouses, giving them various rights and responsibilities under the law.
2. Tax Benefits: Married couples enjoy tax benefits. This includes filing joint income tax returns, certain tax deductions and credits, and a potential lower overall tax burden.
3. Social Security Benefits: Spouses may receive Social Security benefits based on the earnings record of their spouse. This includes survivor benefits in the event of death.
4. Health Insurance Benefits: Many employers offer health insurance coverage to spouses of employees. Same sex spouses can access these benefits just like opposite sex spouses.
5. Family and Medical Leave: Married couples may be eligible for protected leave under the Family and Medical Leave Act (FMLA) to care for a spouse who is ill or to bond with a new child.
6. Inheritance Rights: Spouses can inherit assets from their deceased spouse without facing significant tax implications.
7. Immigration Benefits: Same sex spouses may sponsor their spouse for immigration to their country.  This gives the spouse the right to live and work in the country legally.
8. Access to Benefits: Married couples have access to spousal benefits. These benefits include retirement plans, pension benefits, and veterans’ benefits.
9. Healthcare Decisions: Spouses have the right to make medical decisions on behalf of their partner and visit them in the hospital.
10. Legal Protections: Marriage provides legal protections in areas such as property ownership, joint debts, and the ability to make legal decisions on behalf of a partner who cannot choose.
11. Parental Rights: The right to be legally recognized as a parent either through birth or adoption.

APPLY FOR BENEFITS IF YOU ARE IN A SAME SEX MARRIAGE

Same sex marriage does not stop you from being eligible for SSD benefits or any other Social Security benefit. However, being eligible for SSDI benefits means you cannot work at any job in the national economy. The SSA uses a five step review process to determine if they can pay you benefits.

There are two types of Social Security benefits: Social Security Disability Insurance (SSDI) benefits and Supplemental Security Income (SSI) benefits. You can file an application online at the Social Security’s website for either one or both. Below, you can find an explanation as to each type of benefit you can apply for:

Social Security Disability Insurance (SSDI):  

SSDI benefits are for those who can no longer work due to a severe medical condition like Chronic Fatigue Syndrome. The amount of money you receive from SSDI benefits is based on the taxes you paid during your working years. To qualify for SSDI, you must have earned enough “work credits” to qualify.

A work credit is an amount of taxable income. You can earn up to 4 work credits per year. The amount of work credits you will need depends on how old you are when you apply. If you haven’t earned enough work credits at the time you apply, then you will only be able to file for SSI benefits.

Supplemental Security Income (SSI):  

SSI is a needs based benefit. It is for only those people with little to no income, such as children and the elderly. Anyone who makes more than a certain amount of money per month cannot receive SSI benefits. The SSA counts the income of those who live with you, such as a spouse, not just your income and assets.

If you have a spouse who earns more than $4000 a month, then that income will prevent you from getting SSI benefits. The same rule applies if you are living with a boyfriend and he is paying your bills. Also, the same rule applies if you are living with your mother and she is paying your bills. You cannot get SSI benefits, no matter how severe your medical condition, if you do not meet the income and asset rules for SSI.

WHAT WE DO TO HELP YOU WIN BENEFITS 

You do not need to try to win SSD and SSI benefits by yourself. We can help file your SSD application. Also, we can help you appeal every SSA denial. For example, our attorneys and staff can:

• Send you the paperwork and forms you need to become our client
• Help you file your application for SSD and SSI benefits
• Inform the SSA they should pay your benefits under the Compassionate Allowance Rules
• Request an appeal if you receive a denial from DDS
• Help you confirm your SSA doctor exam
• Request a Hearing with an Administrative Law Judge (ALJ)
• Prepare you to testify at your ALJ hearing
• Represent you at your SSD hearing and question the expert witnesses
• Read more about job expert testimony
• Learn more about medical expert testimony
• Request review of an SSA decision with the Appeals Council
• Request review of an Appeals Council denial in Federal Court

If you file your application for benefits online at Social Security’s website, then you have 6 months to complete the application. Try not to take that long to finish it. Once you submit your application online, the SSA sends you an application summary in the mail. You must sign the summary and mail it back. If you need help to file your application, then we will help you.

YOU ONLY PAY ATTORNEY FEES IF YOU WIN BENEFITS

The SSA has capped attorney fees in Social Security cases at 25% of your past due or back benefit or $7200, which ever amount is less. This is the most your attorney can charge you if they win your case at the hearing level or below.

For example, if your attorney wins your SSDI case and your back benefit is $10,000, then the attorney fee will be 25% of the back benefit, or $2500. In such a case, you would not pay the $7200 cap. Instead, the attorney fee is 25% of the back benefit, which is less than the cap. This is what happens in most SSDI and SSI cases.

In another example, if you attorney wins your SSDI case and your back benefit is $100,000, then the attorney fee is not $25,000, which is 25% of the back benefit. Instead, the attorney fee would be $7200. Because $7200 is the most your attorney can charge you after winning your case at the hearing level or below. That is true even if 25% is higher than the $7200 cap.

Additionally, your attorney can only charge an attorney fee if they win your case. In other words, if you do not win your benefits, then you do not pay an attorney fee. This means that your attorney has worked for up to two years on your case for free. So, if you don’t get benefits, then your attorney doesn’t get paid. Obviously, your attorney has a good reason to win your case.  Because the attorney fee is only paid when you win your benefits. Learn more here about attorney fees in SSD cases.

WE OFFER A FREE REVIEW OF YOUR SSD BENEFITS 

Same sex couples should ensure that their marital status is being recognized by the SSA to access SSD benefits. This may involve providing records such as marriage certificates, legal name changes, or other relevant paperwork. Obviously, keeping copies of important legal documents will serve you in many situations.

We offer a free review of your SSD and SSI benefits. What that means is that you can call us and explain your situation. At that point, we will look at the merits of your case for free and let you know if you have a chance to win benefits. We do not charge you for our review of your case. Also, we are happy to help couples who in a same sex marriage negotiate the confusion of SSA benefits.

In the past 30 years, we have won over $100 million in SSDI and SSI benefits for our clients. We are experts at what we do. Hire us to be your Social Security legal team.

We help clients win benefits in many states, including Nevada, Utah, Idaho, and California. Find out more about your benefits and how to apply in your state here:

• California SSDI and SSI benefits
• Colorado SSDI and SSI benefit information
• Idaho SSDI and SSI benefits
• Nevada SSDI and SSI benefits
• Utah SSDI and SSI benefits

No matter where you live, we want to be your legal team. Hire the best Social Security legal team with no money down. Also, there will be no attorney fee unless we win your case. Contact us today. We will do our best to help you win SSDI and SSI benefits. We know that not being able to work and running through your savings creates stress. Therefore, we will also due our best to win your benefits as quickly we can.