Defense of Marriage Act and Social Security

Hi there,

An important date in the DOMA battle is coming up soon.  On November 30, the Supreme Court will announce whether it will be taking up the matter in its next term.  In light of that, there is considerable discussion of what gay and lesbian married couples should do to maximize their rights should DOMA be struck down.  This week my Burns & Levinson partner, Evelyn Haralampu, has a piece on DOMA and Social Security benefits.  Next week, our colleague Lisa Cukier will share an alternative view on the subject.

Keep reading below.



The Defense of Marriage Act (DOMA), which was passed in 1996 under the Clinton administration, denies federal benefits to married, same-sex couples.  Because DOMA does not recognize same-sex marriage, no federal benefits based on marriage (such as Social Security survivor benefits, joint federal income tax filing, etc.) are available to same-sex, married couples.

A number of federal courts have found DOMA unconstitutional.  In February of this year, the Obama administration ordered the Justice Department to stop defending the constitutionality of the law.  However, for state law purposes, 32 states do not recognize same-sex marriages.  The U.S. Supreme Court is scheduled to decide on November 30, 2012 whether to hear arguments relating to the constitutionality of DOMA.

Under current law, DOMA prevents a spouse in a same-sex marriage from collecting Social Security spousal benefits based on retirement, disability or death of the other spouse.  DOMA can also prevent the children of a same-sex married couple from collecting benefits on the death or disability of a parent who did not adopt or give birth to the child, even though that parent may have supported and helped raise the child.

Because there are a number of federal appeals court rulings invalidating DOMA, the law could well be struck down by the U.S. Supreme Court, although no result is ever certain.  With the expectation that DOMA will be invalidated, some same-sex married couples have asked whether there is anything they can do now to hasten their receipt of Social Security benefits.

Some advocates believe that same-sex couples can preserve a retroactive benefit of their Social Security benefits while DOMA is being challenged in the U.S. Supreme Court by filing now for a marriage-based benefit.  These advocates claim that if the denial of benefits by the Social Security Administration is appealed and that appeal has not been decided when DOMA is invalidated by the US Supreme Court, the marriage based benefit would be awarded retroactively to the first date of application for that benefit.  Alternatively, the advocates claim that if the Social Security appeal process finishes before the Court strikes down DOMA, the same-sex married couple should be allowed to apply again when DOMA is struck down, and receive a higher benefit based on a later date of application.

While many expect the U.S. Supreme Court to overturn DOMA as unconstitutional, if the Court hears the case, it is not clear how applying for Social Security benefits now, before the case is heard, preserves benefits for a same-sex married couple.  Under current law, same-sex married couples would be denied marriage-based Social Security benefits, and any appeal would also be denied.  Once the Social Security Administration denies an appeal, a later decision of the Court invalidating DOMA would probably have no retroactive effect to undo that denial, and the parties would have to re-apply for benefits.  If a Social Security appeal is still pending when the Court strikes down DOMA, a same-sex couple would probably be entitled to spousal benefits from the date of the Court’s decision, but not earlier to the date of the Social Security application.  Thus, it might well be more work than necessary for a same-sex couple to apply for marriage based Social Security benefits now before the US Supreme Court reaches any decision on DOMA.

Unless DOMA is overturned with a retroactive effective date (which is unlikely), or the Social Security Administration tables the appeals of same-sex married couples until after the U.S. Supreme Court decides on the constitutionality of DOMA, a denied  applicant would have to reapply for Social Security benefits after the Court strikes DOMA down.  However,  if the Social Security application of the same-sex married couple is pending at the time when DOMA is found unconstitutional, then that application would probably be approved only prospectively.

Since it is unknown when or whether the US Supreme Court will overturn DOMA, a better approach is for same-sex married couples to wait for the U.S. Supreme Court to overturn DOMA before applying for Social Security spousal benefits.  Because Social Security benefits are actuarially adjusted for delayed commencement, it should not matter economically whether a same-sex married couple claims spousal benefits earlier or later.