Applying for Social Security Survivor’s Benefits During the DOMA Appeal

Hi there,

The Supreme Court announces today whether or not they are going to take up a challenge to the Defense of Marriage Act in a case arising out of Social Security benefits. As promised, here is a different point of view to last week’s post.  This one is authored by my partner Lisa Cukier, one of our experts in the intricacies of gay and lesbian divorce.



The Defense of Marriage Act (DOMA), which was passed in 1996, denies federal benefits to married same-sex couples.  DOMA denies the existence of same-sex marriages by stating that marriages may only be between one man and one woman. Consequently, the federal government is allowed to deny gay spouses certain marriage-based advantages that straight spouses routinely and unquestionably receive, such as tax advantages, health and retirement benefits, Veteran’s benefits, Social Security Administration benefits and other federally based advantages, thus treating gay married Americans as second class citizens.

Social Security benefits, such as survivor’s benefits that permit a widow to receive her deceased spouse’s Social Security after her spouse’s death, are one such federal benefit. Gay widows and widowers are ineligible for their late spouse’s Social Security simply because they are gay, even though their late spouse may have paid into the system for decades.  Unlike heterosexual spouses, same-sex spouses are ineligible to receive Social Security upon the disability of the other spouse.  In some situations, DOMA sadly prevents children from receiving survivor’s benefits following the death of their parent if that parent did not give birth to the child and never undertook a second parent adoption — even though that parent may have created the family in a same-sex marriage by bringing the child into the world and by supporting and raising the child.

The issue of the constitutionality of DOMA is working its way up the federal court system to the US Supreme Court.  Several federal District Courts and Circuit Courts of Appeals have decided that DOMA is unconstitutional.  While those cases are on appeal, DOMA remains in force.  The U.S. Supreme Court is scheduled to decide on November 30, 2012 whether to hear arguments relating to the constitutionality of DOMA.  Consequently, the unconstitutionality of DOMA may be settled in as soon as seven months.

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.  In anticipation that DOMA will be invalidated, some same-sex widows and married couples may soon have an opportunity to receive Social Security benefits.

Gay and Lesbian Advocates and Defenders (GLAD) is advising people how to preserve their rights while DOMA is challenged in court.  It is possible that gay individuals who are in same-sex marriages may be able to obtain retroactive Social Security benefits when DOMA falls, if they have already applied for benefits while DOMA is being challenged in the U.S. Supreme Court.  Of course, the initial application will be denied since the applicant is in a same-sex marriage; but that denial should be administratively appealed at the Social Security Administration offices.

As the benefits eligibility appeal winds its way through the administrative appeals processes of the Social Security Administration, and if that benefits eligibility appeal has not yet been decided by the time DOMA is declared unconstitutional by the US Supreme Court, the marriage-based benefit could be awarded retroactively, back to the first date of application for that benefit.  (Click here for information from GLAD on DOMA and Social Security benefits.)  Alternatively, if the Social Security appeal process finishes before the Court strikes down DOMA, the same-sex married couple can await a ruling by the Supreme Court and then apply for Social Security if the court strikes down DOMA as unconstitutional.

I hope that the U.S. Supreme Court will strike down DOMA.  Nobody knows for certain what will happen, but think about the impact on retroactive benefits if the Social Security Administration has eligibility appeals in cue for decision, and if the US Supreme Court then invalidates DOMA.  As one possible scenario, if a Social Security appeal is still pending when the Court strikes down DOMA, a same-sex couple may only be entitled to spousal benefits from the date of the Court’s decision, and not earlier to the date of the Social Security application.  As another possible scenario, it may be very worthwhile to apply now because if there are Social Security Administration appeals in the pipeline, the Court may stay them pending a DOMA which would preserve the right to retroactive eligibility. In other words, if the Social Security application of the same-sex widow is pending at the time DOMA is declared unconstitutional, then that application may possibly be approved, and perhaps even with retroactive benefits.