social security benefits and doma

7/28/2019 Social Security Benefits and Doma

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CAN I DO ANYTHINGNOWTOPRESERVE MY RIGHTS?

SOCIAL SECURITY BENEFITS AND

THE DEFENSE OF MARRIAGE ACT:


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T A B L E O F C O N T E N T S

3 Overview

24 Surviving Spouse Benet29 What Can I Do I I Qualiy?

30 Childs Benet

36 What i Im Divorced?

38 Applying or Social Security

40 Appealing a Denial o Social Security Benets

43 I Congress Repeals DOMA

20 Lump-Sum Death Benet22 What Can I Do I I Qualiy?

16 Spousal Disability Benet

18 What Can I Do I I Qualiy?

6 Spousal Retirement Benet14 What Can I Do I I Qualiy?

44 GLADs Legal InoLine


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At present, the Deense o Marriage Act Section 3 (DOMA)

erases the marriages o same-sex couples or all ederalpurposes. In the Social Security context, DOMA means that

a person married to someone o the same sex cannot claim

the Social Security benets that might be due to a spouse,including:

the spousal retirement benet;

the spousal disability benet;

the lump-sum death benet; and

the survivor benet.

DOMA also can limit a childs access to Social Security

benets. For example, when a married working parent dies,

DOMA means that a child o the marriage may be deniedbenets unless the worker is that childs birth or adoptive

parent or the amily lives in a State where the child could

inherit rom that parent under the States intestacy law (this

should include all States that permit same-sex couples to

marry and Washington, D.C. as well as States that recognizemarriages o same-sex couples rom other states).

Can married same-sex couples count on

Social Security spousal protections like

other married couples can?


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Social Security is an important saety net in this country. It

can make the dierence between living in poverty andhaving enough to get by. In 2004, the Congressional

Budget Ofce judged that 30% o married same-sex couples

would receive higher benets as a retired couple than theywould as two single people. And, i their marriages were

recognized or the purposes o Social Security, about hal o

same-sex couples would collect higher benets ater one

partner died than they would under current law. DOMA

prevents married same-sex couples who have paid into the

system their entire working lives rom receiving vital SocialSecurity protections as other married couples do.

Social Security is acomplex ederal program.This document is intendedto provide generalinormation only and

cannot substitute orguidance or legal advice

as to ones specicsituation. Moreover, thispublication is based uponthe inormation that isknown to us as oSeptember 2012.For guidance on your

particular situation, youmust consult a lawyer.The provision o thisinormation is not meant

to create an attorney-client relationship.

For a governmental

explanation o theSocial Security program,visit the Social SecurityAdministration website,www.socialsecurity.gov

Does it matter?


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GLAD is challenging the constitutionality o DOMA in two

separate lawsuits. In addition, eorts are ongoing to repealDOMA. I you or your child(ren) are disqualied by DOMA

rom the important protections Social Security oers to

other amilies, you can apply or Social Security benets

now to preserve your rights and possibly receive benets

based on the date o your application i DOMA is ruled

unconstitutional.

This document details the dierent types o Social Security

benets or which you, as a spouse, or your child(ren) mightbe eligible but will be denied because o DOMA. It explains

how to apply or those benets now, how to appeal the

denial o benets based on DOMA, and how to keep your

appeal alive to preserve your rights while the courtchallenges are pending.

Is there anything I can do now to try

to preserve my Social Security rights

while DOMA is challenged in court?


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The spousal retirement benet is based on the earningsrecord o your spouse, as opposed to your own earnings

record, and is claimed when both spouses are living. You

as the spouse o a retired workerassuming that you meetage and other requirementsare eligible to receive the

greater o either your own Social Security retirement ben-

ets or an amount equal to 50% o your retired spouses

benet (subject to reduction or starting benets beore ull

retirement age).

One-earner amilies: One-earner couples receive a

spousal beneft o an extra 50% o the workers retirement bene-

ft while both spouses are alive (subject to reduction i the non-

wage earning spouse starts benefts beore ull retirement age).

E X A M P L E : Lees spouse receives a Social Security retirement benet o

$2,000 and Lee never worked. At Lees ull retirement age o

66, Lees spousal benet will be $1,000. I Lee takes his benetbeore his ull retirement age, his spousal benet will be reduced.

See page 10 or more inormation on early retirement.

L E E

L E E SS P O U S E

T O T A LB E N E F I T S

D O M Ai n e e c t

w i t h o u tD O M A

$ 1 0 0 0s p o u s a l b e n e i t $ 0s p o u s a l b e n e i t

$ 2 0 0 0r e t i r e m e n t b e n e i t


$ 3 0 0 0 $ 2 0 0 0

Spousal Retirement Benet


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Two-earner amilies: I both spouses have worked longenough to earn worker benets, each may be dually

entitled. The lower-earning spouse can receive his or her

own benet plus a spousal benet to bring his or her totalbenet up to 50% o the primary wage earners benet.

The spousal benet can help two-earner couples in a

second way. Depending on your age, you may be able toreceive benets as a spouse while delaying your own Social

Security retirement (to increase your own benet). I you

are ull retirement age and your spouse is receiving Social

Security benets, you can choose to le and receive benetson just your spouses Social Security record and delay ling

or benets on your own record up until age 70.2

In calculating your own benet and the spousal benet, you

must take into account rules that may reduce benets, suchas early retirement, the Windall Elimination Provision and

the Government Pension Oset. In addition, i your spouses

children are also eligible or Social Security, your spousal

benet may be subject to a cap on total amily benets

under a single earnings record.

These potential reductions are described on page 10.

spousal

Retirement

b e n e f t

E X A M P L E :

Mary Ann qualies

or a retirement

benet o $1,000 on

her own earningsrecord. Her spouse

receives a monthly

retirement beneto $2,400. At Mary

Anns ull retiremenage, she will receive

her own $1,000

retirement benet,

and Social Security

will add $200 romher spouses benet,

or a total o $1,200I she takes her

retirement benet

beore her ulretirement age, both

amounts will be

reduced.

However, were

Mary Anns

retirement benet$1,300 instead o

$1,000, she would

not receive any

spousal benet

1 http://bit.ly/retirementbenetsamily.2 http://bit.ly/delayandreceivespousebenets;

http://bit.ly/retirementbenetsamily.


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Who qualies or the

Social Security spousal

retirement benet?

This section states the eligibility requirements or the

spousal retirement benet. I you do not meet these

requirements, you do not qualiy or this Social Security

benet irrespective o DOMA. The requirements are:

1) at the time o your application or Social Security,

your spouse, the wage earner on whose recordbenets are being sought, must be domiciled in a

State that recognizes your marriage to a spouse othe same sex or in Washington, D.C. or in any oreign

country3. Temporary residence in one o these

jurisdications is not sufcient;

In addition to Washington D.C., as o November 2012*, theStates that permit same-sex couples to marry are:

Connecticut Iowa

Massachusetts

New Hampshire New York

Vermont

*See sidebar or additional states where your marriage

may be recognized.

Neither a domestic parntership nor a civil union can serveas the basis or a Social Security spousal retirement

beneft under current law. You must be married.

2) you and your spouse must have been married or atleast 12 months prior to your application or

spousal benets (or Social Security purposes, youwill have been married or a period o 12 months on

the rst day o the month o your rst anniversary);

Maine, Maryland, andWashington State allpassed marriage equalitylaws at the ballot onNovember 6, 2012. The

dates when same-sexcouples can begin

marrying in each Statevary. Please contactGLADs Legal InoLine at800-455-GLAD or moreinormation i you reside inone o these States.

In addition, the ollowingStates recognizemarriages o same-sexcouples in certain

circumstances:

Caliornia(i the marriage wasperormed in Caliorniabetween June 16, 2008

and November 4, 2008or out-o-state beore

November 4, 2008); and

Maryland, New MexicoandRhode Island(i the marriage was

lawully perormed inanother state).4


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spousal

Retirement

b e n e f t

3) you must be at least age 62 or have a qualiying

child in your care who is entitled to a childs

insurance benet based on the earnings record oyour spouse (by a qualiying child, Social Security

means a child under age 16 or who receives Social

Security disability benets. Child is dened by theSocial Security Act as explained on page 30);

4) your spouse, on whose earnings record you are

applying, must have applied or retirement

benets and be ully insured according to the

Social Security Administration, which means that he

or she worked and paid into the system long enoughto qualiy or this particular benet; and

5) you must not be entitled to a higher SocialSecurity benet on your own earnings record

(unless you want to apply or the spousal benet todelay retirement based on your own earnings

record).

3 42 U.S.C. 416(h)(1)(A)(i) (An applicant is the wie, husband, widow, or widower o aully or currently insured individual or purposes o this title i the courts o the State

in which such insured individual is domiciled at the time such applicant les an

application, or, i such insured individual is dead, the courts o the State in which hewas domiciled at the time o death, or, i such insured individual is or was not so

domiciled in any State, the courts o the District o Columbia, would nd that suchapplicant and such insured individual were validly married at the time such applicant

les such application or, i such insured individual is dead, at the time he died.).4 R.I. Exec. Order No. 12-02 (May 14, 2012), available at http://bit.ly/outostatemarriagesri

& Letter rom Patrick C. Lynch, Attorney General or the State o Rhode Island, to JackWarner, Commissioner o the Rhode Island Board o Governors or Higher Education

(Feb. 20, 2007), available at http://bit.ly/patricklynchletter; MarriageWhether Out-

o-State Same-Sex Marriage That Is Valid In The State O Celebration May BeRecognized In Maryland, 95 Md. Op. Atty. Gen. 3, 2010 WL 886002 (Feb. 23, 2010);

N.M. Stat. Ann. 40-1-4; Are same-sex marriages perormed in other jurisdictionsvalid in New Mexico?, N.M. Op. Atty. Gen. 11-01, 2011 WL 111243 (Jan. 4, 2011).

5 http://bit.ly/spousebenets.

I your spouse is o ulretirement age but wants

to delay receipt o benets(to draw a greater benet

later), your spouse can

apply or retirementbenets and then request

to have paymentssuspended. That way, you

can receive a spousabenet and your spouse

can continue to earndelayed retirement credits

until age 70.5

For a Consumer Reports

article on how tomaximize your Socia

Security benets visit: http://bit.ly/timingssbenets

For an AARP publicationon How to Maximize Your

Social Security Benetsvisit http://

bit.ly/maximizessbenets


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0

Potential Reductions to BenetsIn calculating benets, you must consider rules that could

reduce your benets, including:

(a) early retirement;

(b) i your children are also receiving Social Securityunder the same earnings record, the maximum

amily benets limit; and

(c) i the worker or spouse worked or an employer that

did not withhold Social Security taxes and receives a

pension rom that work,

(i) the Windall Elimination Provision; and(ii) the Government Pension Ofset.

Early retirement. You may start receiving Social Security

as early as age 62 or as late as age 70. However, i you start

benets early, beore the ull retirement age set or you by

Social Security, your monthly benets are reduced.

The ull retirement age or people born between 1943 and

1954 is 66.

In the case o early retirement, a benet is reduced ve-

ninths (5/9) o 1% or each month beore normal retirementage, up to 36 months. I the number o months exceeds 36,

then the benet is urther reduced ve-twelths (5/12) o

1% per month.6 To compute the eect o early (or delayed)

retirement, visit: http://bit.ly/earlyorlate

On the other hand, you are rewarded or postponing

collecting Social Security. Beginning with the month in

which you reach your ull retirement age, your check is

increased by two-thirds (2/3) o 1% (or 8% every 12 months)

or each month that you delay starting Social Security.These delayed retirement credits cease once you turn 70, so

theres no advantage in delaying the start o benets ater

spousal

retirement

beneft


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that. To compute the eect o early (or delayed) retirement

visit: http://bit.ly/earlyorlate

According to Social Security, as a general rule based on

estimates o an average persons lie expectancy, early or

late retirement will give someone about the same total

Social Security benets over their lietime. I a person

retires early, the monthly benet amounts will be smaller totake into account the longer period benets will be paid. I

someone retires late, the person will get benets or a

shorter period o time but the monthly amounts will be

larger to make up or the months when the person did notreceive anything. Look through actors Social Securitysuggests you consider in deciding when to retire:

http://bit.ly/consideringyourretirement

spousal

retirement

b e n e f t

6 http://bit.ly/earlyorlate.

anet Geller andJoanne Marquis,

hallenging DOMA in

GLADs case Pedersen v. OPM


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benet, WEP aects the spousal benet as well.8

While benets are lowered because o the WEP, they are

never totally eliminated. Under a special rule, the reductionunder the WEP can be no more than one-hal o the amount

o the pension rom employment that is not covered by

Social Security. For example, i the persons pension is $500

per month, the WEP reduction could not exceed $250.9 The

maximum reduction under the WEP ormula or 2012 isnormally $383.50 per month.

Government Pension Ofset (GPO). The GPO applies to

spousal benets (whereas the WEP applies to the workers

benet). The spousal benet can be reduced based on theGPO i you receive a pension rom a ederal, state, or local

government based on work where you did not pay Social

Security taxes.10 I the GPO applies to you, your Social

Security benets will be reduced by two-thirds o your

government pension.

spousal

retirement

b

f t

7 http://bit.ly/amilymaximumeect.8 http://bit.ly/windalleliminationeect.9 http://bit.ly/wepeliminatemonthlybenet.10 http://bit.ly/govtpension.11 Id.

This is just a brieexplanation o the WEP

and GPO

Visithttp://

bit.ly/windalleliminationandhttp://

bit.ly/govtemployees ormore inormation abou

the WEP, includingexamples and exceptions

Visithttp://bit.ly/govtpensionose

or more inormationabout the GPO, including

examples andexceptions.1

Visithttp://bit.ly/benetsgpoandwep

andhttp://

bit.ly/govtemployees orinormation about howSocial Security benets

are calculated when boththe WEP and GPO reduce

your benets


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4

What can I do i I qualiy or the

Spousal Retirement Benet but

DOMA prevents me rom receiving

it?

I you would meet the qualications or the spousal

retirement benet but or DOMA, you have two possible

courses o action: you can apply now to try to preserve your

claim back to the date o application or wait to see i DOMAis repealed or ound unconstitutional in court and then ap-

ply. Specically:

1) You can apply now to Social Security or the

spousal benet. (See page 38 or inormation about

fling an application or Social Security.)

Until DOMA is overturned in court or repealed by

Congress, expect your claim to be denied. (You will

David Wilson and Rob Comp

plaintis in GLADs Goodridge case

brought marriage equality to Massachu


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spousal

retirement

b e n e f t

then ollow the appeals process described on page 40.)

I your appeal process is still ongoing at a time when

DOMA is invalidated by a court, you should then

receive the spousal retirement benet; you shouldalso be entitled to retroactive benets based on the

date o your application.

I your appeal process is over (or i you never

appealed a denial o the benet) beore DOMAsconstitutionality is decided, then i GLAD wins its

challenges to DOMA (or i DOMA is repealed by

Congress), you should be allowed to apply again or

and receive the higher benet rom the time o your

renewed application and going orward.

OR

2) You can wait to see i DOMA is ound

unconstitutional by the courts or repealed by

Congress. At that time, you should be able to apply

or and receive the spousal retirement benet justlike any other married person. There is no deadline

or applying or a spousal retirement benet,

though the date benets can begin is determined by

the date you le an application.


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6

Social Security pays benets to people who cannot work

because they have a medical condition that is expected to

last at least one year or result in death. Federal law requires

this very strict denition o disability. While some programsgive money to people with partial disability or short-term

disability, Social Security does not.12

A spouse may be eligible or a monthly benet o up to 50%

o the disabled workers benet. The requirements are verysimilar to the spousal retirement benet described on

page 8.

In calculating the workers disability benet and your

possible spousal benets, you must take into account rulesthat may reduce benets, such as the Windall Elimination

Provision and the Government Pension Oset. In addition,i your spouses children also are eligible or Social Security,

your spousal benet may be subject to a cap on total amily

benets. See page 12.

The next section states the eligibility requirements or the

spousal disability benet. I you do not meet these

requirements, you do not qualiy or this Social Securitybenet irrespective o DOMA. The requirements are:

Spousal Disability Benet


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1) at the time o your application, your spouse, the wage

earner on whose record benets are being sought, must

be domiciled in a State that recognizes your marriage to

a spouse o the same sex or in Washington D.C. or in anyoreign country (see page 8 or a list o such places as o

September 2012);

2) you and your spouse must have been married or at

least 12 months prior to your application or spousaldisability benets (or Social Security purposes, you will

have been married or 12 months on the rst day o the

month o your rst anniversary);

3) you must be at least age 62 or have a qualiying childin your care who is entitled to a childs insurance benet

based on the earnings record o your spouse (By aqualiying child, Social Security means a child who is

under age 16 or who receives Social Security disability

benets. Child is dened by the Social Security Act asexplained on page 30);

4) your spouse, on whose earnings record you are

applying, is entitled to disability benets; and

5) you must not be entitled to a higher Social Securitybenet on your own record (unless your benet is

higher than the spousal disability benet and you

want to apply or the spousal disability benet to delay

retirement based on your own earnings record asdescribed on page 7).

Who qualies or the

Social Security spousal

disability benet?

12 http://bit.ly/disabilitybenets;see also http://bit.ly/disabilityplanner.


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8


Spousal Disability Benet but DOMA

prevents me rom receiving it?

I you would meet the qualications or the Spousal

Disability Benet but or DOMA, you have two possible

courses o action: you can apply now to try to preserve your

claim back to the date o application or wait to see i DOMAis repealed or ound unconstitutional in court and then

apply. Specically:

1) You can apply now to Social Security or the

spousal disability benet. (See page 38 or

inormation about fling an application or Social

Security.)






receive the spousal disability benet; you should alsobe entitled to retroactive benets based on the date

o your application.

I your appeal process is over (or i you never

appealed a denial o the benet) beore DOMAs

constitutionality is decided, then i GLAD wins itschallenges to DOMA (or i DOMA is repealed by

Congress), you should be allowed to apply again or

and receive the higher benet rom the time o your

renewed application and going orward.


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OR


unconstitutional by the courts or repealed byCongress. At that time, you should be able to apply

or and receive the spousal disability benet just like

any other married person. There is no deadline orapplying or a spousal disability benet, though

the date benets can begin is determined by the

date you le an application.

spousal

disability

Betty Jo Green andJoAnn Whitehead,

hallenging DOMA in GLADs case Gill v. OPM


20/44

0

Who Qualies or the Lump-Sum Death Benet?

(a) Surviving spouse. This section states the eligibility

requirements or a surviving spouse to qualiy or the

lump-sum death benet. I you do not meet theserequirements, you do not qualiy or this Social Security

benet irrespective o DOMA. The requirements are:

1) at the time o your spouses death, your spousemust have been domiciled in a State thatrecognizes your marriage to a spouse o the same

sex or in Washington D.C. or in any oreign

country (see page 8 or a list o such places as oSeptember 2012);

2) you and your spouse must have been married or

at least 9 months immediately prior to the day

on which your spouse died;

3) your deceased spouse must have been ully

insured according to the Social Security

Administration, which means that he or she had

worked and paid into the system long enough to

qualiy or this particular benet;

4) you and your spouse must have been living in

the same household at the time o the death(with certain exceptions or things like hospital

and nursing home stays); and

5) you, as surviving spouse, must apply or the $255death benet within two years o the date o

your spouses death.

L U M P - S U M

D E A T H B E N E F I T

There is a one-time deathbenet o $255 payableto a surviving spouse, or,i there is no spouse, to aminor childi certainconditions are met. I no

spouse or child meetingthese requirements exists,the lump-sum deathpayment will not bepaid.13

Lump-Sum Death Benet


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(b) Surviving child. I a qualiying surviving spouse exists

or purposes o the lump sum death benet, a surviving

child will not receive the benet. I there is no spouse

eligible to receive the payment, a child who is receivingbenets on the deceased workers earnings record

during the month in which the worker died or is eligible

to receive benets can claim the lump-sum deathbenet.14

To determine i a child is eligible or benefts on

the deceased persons record, see page 30.

13 42 U.S.C. 202(i); http://bit.ly/lumpsumdeathpayment.14 http://bit.ly/lumpsumdeathbenet.

lump-sum

death


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2


Lump-Sum Death Benet but DOMA


I you would meet the qualications or the lump-sum death

benet but or DOMA, you have two possible courses o ac-

tion: you can apply now to try to preserve your claim back

to the date o application or wait to see i DOMA is repealedor ound unconstitutional in court and then apply. Beware,

though, that you must apply or this benet within two

years o the date o your spouses death. Specically:

1) You can apply now to Social Security or thelump-sum death benet. (See page 38 or inormation

about fling an application or Social Security.)

Herb Burtis (let, withspouseJohn Ferris), challenDOMA in GLADs case Gill v.


23/44






receive the lump-sum benet.

OR


unconstitutional by the courts or repealed by

Congress. At that time, you should be able to apply

or and receive the lump-sum death benet just likeany other married person, as long as the date o your

application is within two years o your spouses

death.

lump-sum

death


24/44

4

When a worker dies, the surviving spouse may be entitled tobenets based on the workers earnings record. Specically,

a surviving spouseassuming that he or she meets age or

other requirementsis entitled to receive the greater oeither his or her own Social Security retirement benet or

the deceased workers Social Security benet.

A surviving spouse can also use the survivors benet to

delay retiring on his or her own record, thereby earning

delayed retirement credits and increasing his or her ownbenet.15

E X A M P L E 1 : Tricias spouse receives a Social Security retirement benet o $2,000and Tricia receives a benet based on her own earnings record o

$1,200. Both have reached ull retirement age. I Tricias spouse

dies rst, Tricia is entitled to receive her spouses higher payment o

$2,000 as a surviving spouse. I Tricia dies rst, her spouse wouldcontinue receiving the spouses own retirement benet o $2,000,and will receive no additional benet based on Tricias earnings

record.

George is 67 and currently receives $1,500 in Social Security

retirement benets based on his own earnings record. Georgesspouse is 64, two years short o ull retirement age and would

receive a monthly benet o $2,000 upon retirement. Georges spousedies. George could apply now or the survivors benet and begin re-

ceiving a monthly benet o $2,000 (that Georges spouse would have

received upon retirement). The age that matters here is the age othe survivor, not the age o the deceased.

E X A M P L E 2 :

Surviving Spouse Benet


25/44

15 http://bit.ly/survivorsplanner.

surviving

spouse

Karen is 61. I she begins drawing Social Security based on her

own earnings record at age 62, her monthly benet will be $750.

I she waits until she is 66, her monthly benet will be $1,000,

and i she waits until she is 70, her monthly benet will be $1,310.

Karens spouse is retired and receives a monthly benet o $1,000.Karens spouse dies. Because Karen is over 60, she can apply or a

survivor benet based upon her spouses earnings record and begin

receiving a survivors benet now (reduced or early retirement). At

age 70, Karen will be able to switch over to her own earnings recordand receive a monthly benet o $1,310.

E X A M P L E 3 :

A G E 6 2

W I T HB E N E F I TW I T H O U TB E N E F I T

$ 7 5 0r e t i r e m e n t b e n e i t


A G E 6 6

A G E 7 0 $ 1 3 1 0r e t i r e m e n t b e n e i t

$ 1 0 0 0s u r v i v o r s b e n e i t

$ 1 0 0 0s u r v i v o r s b e n e i t



26/44

6

Who qualies or a

survivors benet as a

widow or widower?

This section states the eligibility requirements or a

surviving spouse to receive the widow or widowers benet.

I you do not meet these requirements, you do not qualiy

or this Social Security benet irrespective o DOMA.The requirements are:

1) at the time o your spouses death, your spouse musthave been domiciled in a State that recognizes your

marriage to a spouse o the same sex or inWashington D.C. or in any oreign country

(see page 8 or a list o such places as o

September 2012);

2) you and your spouse must have been married or at

least 9 months immediately prior to the day on

which your spouse died;Note: There are several exceptions to the duration

requirement. For a ull list, visit: http://bit.ly/

marriagerequirement

3) your deceased spouse must have been ully

insured according to the Social SecurityAdministration, which means that he or she had

worked and paid into the system long enough to

qualiy or this particular benet;


27/44

4) you must be:

(a) 60 or older;(b) 50 or older and disabled; or

(c) caring or a qualiying child who is entitled

to a childs insurance benet based on theearnings record o your spouse (By a

qualiying child, Social Security means achild under age 16 or who receives Social

Security disability benets on your spouses

earnings record. Child is dened

by the Social Security Act as explained on

page 30);

5) you must not have re-married beore age 60 (or, iyou are disabled, age 50) unless the later marriage

has ended at the time o application, whether by

death, divorce, or annulment16; and

6) your monthly Social Security benet must be

lower than the monthly amount your deceasedspouse was receiving (unless your own benet is

higher than what you would receive rom the

survivors benet and you want to apply or thesurvivors benet to delay retirement based on your

own earnings record).

16 http://bit.ly/survivorsplanner.

surviving

spouse


28/44

8

Potential Reductions to BenetsIn calculating a survivor benet, you must consider rulesthat could reduce your benets, such as early retirement,

maximum amily benets, and the Government Pension

Oset (GPO). See page 12. Note, however, that the Windall

Elimination Provision (WEP) does not apply to survivor

benefts.

E X A M P L E :

A worker and spouse both claim their benets at ull

retirement age. Because the worker receives a pension

based on work not covered by Social Security, thebenet amount under the WEP benet ormula is

$700. Based on the WEP benet amount, the spouses

benet is $350 (one-hal o the workers WEP benet

amount).

When the worker dies, the WEP reduction is removed.

The surviving spouses beneft is refgured using the

regular beneft ormula.17

I you would meet the qualications or the survivors

benet but or DOMA, you have two possible courses oaction: you can apply now to try to preserve your claim

back to the date o application or wait to see i DOMA isrepealed or ound unconstitutional in court and then apply.

Specically:

surviving

spouse

beneft


29/44

1) You can apply now to Social Security or the survivor

benet. (See page 38 or inormation about fling an

application or Social Security.)




I your appeal process is still ongoing at a time whenDOMA is invalidated by a court, you should then receive

the survivor benet; you should also be entitled to

retroactive benets based on the date o your

application.

I your appeal process is over (or i you never took an

appeal o the denial o your application or the survivorbenet) beore DOMAs constitutionality is decided, then

i GLAD wins its challenges to DOMA (or i DOMA is

repealed by Congress), you should be allowed to applyagain or and receive the higher benet rom the time o

your renewed application and going orward.

OR

2) You can wait to see i DOMA is ound unconstitutional bythe courts or repealed by Congress. At that time, youshould be able to apply or and receive the survivor

benet just like any other married person. There is no

deadline or applying or a survivor benet, though

the date o application will determine the start date o

benets.


Survivors Benet but DOMA


17 http://bit.ly/windalleliminationeect.


30/44

A child can receive Social Security benets under Social

Securitys disability, retirement, or survivor protections i

the worker on whose earnings record he or she is claiming

worked long enough in a job where he or she paid SocialSecurity taxes.

The child also must be:

1) Unmarried; and

2)

(a) Younger than age 18; or

(b) 18-19 years old and a ull-time student (no

higher than grade 12); or(c) 18 or older and disabled. (The disability

must have started beore age 22.)

C H I L D S

B E N E F I T

Social Security does notjust help older people.It also can help a workerschild or children when

one or both parents aredisabled, retired ordeceased. Because SocialSecurity provides animportant economicsaety net, child andchildren are denedbroadly.

0 Geraldine (let) and Suzanne Awith their three sons, challen

DOMA in GLADs case Pedersen v.

Childs Benet


31/44

The Social Security law has numerous and complicated tests

or who can be a child. Because this memo ocuses on

married couples o the same sex, this section sets orth the

denitions most relevant to those couples rather than anexhaustive list. I one o these situations does not apply but

the child was dependent on the insured worker or support,

call GLADs InoLine at (800) 455-GLAD or seek legal counsel.

The term child means:

1) A legally adopted child o an individual.Because o the Social Security Acts broad

protections, benets may be available i an adoption

is in process at the time a worker dies and sometimeseven or a posthumous adoption. The Act provides:

A person shall be deemed, as o the date o death o an

[insured] individual, to be the legally adopted child o

such individual i such person was either living with orreceiving at least one-hal o his support rom such

individual at the time o such individuals death and

was legally adopted by such individuals surviving

spouse ater such individuals death but only i

(a) proceedings or the adoption o the childhad been instituted by such individual beore

his death, or

(b) such child was adopted by such individuals

surviving spouse beore the end o two yearsater the day on which such individual died.18

Who is a child under

Social Security?

18 42 U.S.C.A. 416(e).


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2

I an adoption o the child was not completed beore the

insured worker died, please contact GLADs InoLine at

(800) 455-GLAD or an attorney that specializes in SocialSecurity.

OR

2) A biological child o an insured individual or a child o the

insured individuals marriage i the child would be able to

inherit intestate (without a will) through the wage earneras a child.19

This denition should protect a child born into a

marriage o a same-sex couple in Washington, D.C. or

any State that permits such marriages and mayprotect a child born into such a marriage in a State

that recognizes such marriages lawully perormed

elsewhere. See page 8 or a list o such places as o

September 2012.

OR

3) I an applicant is a son or daughter o an insured

individual but is not (and is not deemed to (be) the child

o such insured individual under subparagraph (2), such

applicant shall nevertheless be deemed to be the child

o such insured individual i such insured individual andthe mother or ather, as the case may be, [GLAD believes

this could be read gender neutrally] went through a

marriage ceremony resulting in a purported marriagebetween them which, but or a legal impediment

would have been a valid marriage;20

OR

4) I the person is not a child under (3), but

(a) the insured individual:

childs

beneft


33/44

childs

(I) has acknowledged in writing that the applicant

is his or her son or daughter,

(II) has been decreed by a court to be the mother

or ather o the applicant, or

(III) has been ordered by a court to contribute to

the support o the applicant because theapplicant is his or her son or daughter, AND

I, II, or III happened in a required window o time as

ollows:

- In the case o an insured individual entitled to old-

age insurance benets (who was not, in the month

preceding such entitlement, entitled to disability

insurance benets) not less than one year

beore such insured individual became entitled toold-age insurance benets or attained retirement

age, whichever is earlier.

- In the case o an insured individual entitled to

disability insurance benets, or who was entitledto such benets in the month preceding the rst

month or which he or she was entitled to old-age

insurance benets beore such insured

individuals most recent period o disability began.

- In the case o a deceased individual beore the

death o such insured individual.

OR

19 42 U.S.C.A. 416(e) & (h)(2)(A).20 42 U.S.C.A. 416(e) & (h)(2)(B). This could occur, or example, i one o the participants

was previously married and the marriage had not ended beore that participant went

through a marriage ceremony with another.


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4

(b) such insured individual is shown by evidence

satisactory to the Commissioner o Social Security

to have been the mother or ather o the applicant,and such insured individual was living with or

contributing to the support o the applicant at the

time such applicants application or retirement or

disability benets was led or at such time as the

insured individual died in the case o survivorbenets.21

OR

5) A stepchild who has been such stepchild or not less than

one year immediately preceding the day on which

application or childs insurance benets is led or (i theinsured individual is deceased) not less than nine months

immediately preceding the day on which such individual

died.

The term stepchild or purposes o Social Security

has not been interpreted in the context o amarriage o a same-sex couple. I this is your

situation, please contact GLADs InoLine at

(800) 455-GLAD or seek legal counsel.

A person can be deemed a stepchild o an insured

individual i the insured individual and the childs

parent went through a marriage ceremony resulting in

a purported marriage between them which, but or a

legal impediment, would have been a valid marriage.

For purposes o this denition o child, a child shall be

deemed to have been the stepchild o an

individual or a period o one year throughout the

month in which occurs the expiration o such oneyear.22 (In other words, i a couple were married on

June 30, 2011, the child could be deemed the

step-child o the insured individual as soon as June 1,

childs

beneft


35/44

2012.)

Please note that some protections can be available to a

person who is the grandchild or stepgrandchild o anindividual or his or her spouse in certain circumstances. I

you think this might apply to you, contact GLADs InoLine

at (800) 455-GLAD or an attorney specializing in Social

Security.

21 42 U.S.C.A. 416(h).22 42 U.S.C.A. 416(e).

childs

erry Savoy andJohn Weiss, with

heir three children, challenging DOMAn GLADs case Pedersen v. OPM


36/44

6

A divorced spouse o a retired workerassuming the

marriage lasted at least 10 years and that the divorced

spouse meets age and other requirementsis entitled to

receive benets on the earnings record o a ormer spouse.This includes the spousal benet, the spousal disability

benet, and the survivors benet, (see pages 6, 16 and 24,

respectively) though some eligibility dierencesapply or divorced spouses.

My ormer spouse is o the same sex.Because a divorced spouse can only claim benets

based on a marriage that lasted at least 10 years, or

couples married in the United States, the earliest date

one could claim Social Security based on the earningsrecord o a spouse o the same sex is May 2014

(marriage was rst permitted in the United States onMay 17, 2004). Check back with GLAD about the status

o DOMA at that time.

My ormer spouse is o a diferent sex.As described above, in some circumstances, a marriage

can prevent you rom drawing Social Security based on

the earnings record o a ormer spouse (e.g., you cannot

claim a survivors benet based on the earnings record

o a ormer spouse i you re-marry beore age 60 (or age50 i you are disabled) and the marriage has not ended

see page 27). As long as DOMA is in eect, it prevents

the Social Security Administration rom recognizing

your marriage to a person o the same sex and,

What I Im Divorced?


37/44

thereore, such a marriage will not aect your eligibility

to start or continue Social Security benets.

Because DOMA prevents the Social SecurityAdministration rom recognizing your marriage to a

person o the same sex, such a marriage will not prevent

you rom drawing on the Social Security earnings recordo your ormer spouse o a dierent sex or cause those

benets to stop i you had already started drawingthem.

I you would receive a higher Social Security

benet based on the earnings record o your prior

dierent-sex spouse and you want to maximizeyour benets, you should not apply or Social

Security based on the earnings record o yoursame-sex spouse.

I you would receive a higher Social Securitybenet based on the earnings record o your

same-sex spouse, you can receive Social Security

based on the earnings record o the prior

dierent-sex spouse while you are applying or

benets based on the earnings record o your

current spouse o the same sex.

whatiIm

d i

d ?


38/44

8

Applying or Social Security

You can apply or Social Security benets in person on yourown at your local Social Security Administration

Ofce. (While there are also ways to apply online, the

systems do not seem to be set up to recognize same-sex

spouses and, as such, an attempt to apply online might not

result in a processed application.) Be prepared to provide acopy o your marriage certicate in support o your applica-

tion and, i you are applying or survivor benets, a copy oyour spouses death certicate. Be sure to obtain and keep

a date-stamped copy o your application or other dated

acknowledgment o receipt o your application so that youwill have evidence o when you led in the unlikely event

you need to prove later that you did apply or benets.

You may be told that you cannot apply or marriage-based

benets based on a marriage to a spouse o the same sex.

You need to persist, politely, until you are permitted tocomplete an application. I you are prevented rom even

ling an application or Social Security benets because o

DOMA, please contact GLADs InoLine at (800) 455-GLAD or

seek legal counsel.

Because o DOMA, your application or benets based on

your marriage to a person o the same sex should currently

be denied. In GLADs experience, Social Security has used

statements such as those in Examples 1 and 2 in denying abenet based on DOMA.

Visit http://bit.ly/denialletter1 and http://bit.ly/

denialletter2to see PDFs o a denial letter rom Social

E X A M P L E 1 : Since the Deense o Marriage Act prohibits SSA rom nding that you and theinsured were married or benet purposes, you are not eligible or [BENEFIT ATISSUE].


39/44

Security to an applicant or a benet based on the earnings

record o a spouse o the same sex. I you receive a denial

that diers substantially rom these examples, please

contact GLADs InoLine.

It is possible that a Social Security representative will tell you

orally that your application is denied. I that happens,

politely insist on a written denial, which Social Security isrequired to give you. This is important in order to preserveyour right to appeal. I Social Security reuses to give you a

written denial, please contact GLADs InoLine.

I you do not receive a decision on your application rom

Social Security within two weeks, write to Social Securityand request a decision. I you stil have not received a

written decision our weeks ater your initial application,

please contact GLADs InoLine.

When your application or any Social Security benet isdenied because o DOMA, as you should expect, you must

appeal the denial to try to preserve your claim or Social

Security back to the date o application.

applying

orsocial

E X A M P L E 2 : On [DATE] you contacted this ofce to inquire regarding collecting benets onthe record o [NAME]. You are not entitled or benets on the record o [NAME].

As per POMS GN 00305.005B5 [a Social Security manual], Anindividual whose claim or benets is based on a State recog-

nized same-sex marriage or having the same status as spouse orState inheritance purposes cannot meet the statutory gender-baseddenition o husband, wie, widow, widower o the NH[Number Holder], including one who is divorced. Under theDeense o Marriage Act, the word marriage means only alegal union between one man and one woman as husband andwie. Thereore, or benet purposes, SSA does not recognize

such individual as the spouse o the NH.

I your application orbenets is granted, please

contact GLAD or anattorney. You should

not accept the benetswithout obtaining lega

advice


40/44

Appealing a Denial o

Social Security Benets

The Social Security Administration will tell you in thedenial how to appeal the decision to the next level and you

should ollow the instructions rom Social Security. The

rst step is to seek reconsideration o the denial.

The standard Social Security denial notice will instruct youas ollows:

You have 60 days to ask or an appeal.

The 60 days start the day ater you receive this letter.Social Security will assume you got this letter 5 days

ater the date on it unless you show that you did not

get it within the 5-day period.

You will have to have a good reason or waiting more

than 60 days to ask or an appeal.

To appeal, you must ll out a orm called Request or

0 Raquel Ardin and Linda DeFochallenging DOM

GLADs case Pedersen v.


41/44

Reconsideration, which is orm number SSA-561. Youcan get the orm here:

http://bit.ly/reconsiderationrequestorm

You should be able to complete the orm yoursel and

should do so beore going to the Social Security ofce

to le it.

Form SSA-561 asks you to explain why you do not agreewith the denial o benets. Where the orm states: I do

not agree with the determination made on the above

claim and request reconsideration. My reasons are: youshould indicate that you believe DOMA is

unconstitutional. You may use a short statement,

such as:

My spouse and I are (were) married. DOMA is

unconstitutional.

You also could use a more detailed statement, such as:

I am appealing the denial o [list benet (e.g., spousalretirement benet / spousal disability benet / survivor

benet and lump sum death benet]. The denial o this

benet was based on the 1996 ederal Deense o Marriage

Act (DOMA), 1 U.S.C. 7. Since DOMA blocks recognition

o my marital status/marriage and treats medierently rom other married people in [YOUR STATE], I

believe DOMA is unconstitutional. That law has now been

declared unconstitutional by several ederal courts. In

addition, the Department o Justice has stated its belie

that this law is unconstitutional. For these reasons, Iassert that my marriage should be respected and the

benet granted.

appealing

denialo

It is important that you

personally deliver the

completed Request or

Reconsideration orm

to the Social Security

ofce. Bring two

copies o the completed

orm with you. Submit

one copy and have the

second date stampedor your records so you

will have proo that you

led a request or

reconsideration


42/44

2

Ater reconsideration, there are three additional levels o

appeal. They are:

Hearing by an administrative law judge;

Review by the Appeals Council; and

Federal court review.

For more inormation rom Social Security about the appealsprocess, visit http://bit.ly/yourrighttoquestion. Again, at

each step Social Security will tell you how to appeal to the

next step. Each time you want to explain that you believe

DOMA is unconstitutional.

Because it is possible (though not certain) that DOMA will

be struck down as unconstitutional by the Supreme court,right now you should try to keep your appeal pendingas long as possible. (And the same is true i we must rely on

Congress to repeal DOMA.) To extend your appeal process,wait until any deadline nears to le the next challenge to

your denial (but be sure not to miss any deadlines).

Once you begin your appeal process or i at any point you

have questions, please contact GLADs InoLine at (800)

455-GLAD. GLAD would like to have up-to-date inormationabout who is seeking Social Security and how your claim is

treated.

Once all o the appeal processes internal to the SocialSecurity Administration are exhausted, you will be given a

60 day deadline to le a lawsuit in ederal court to obtain

benets. Again, please advise GLAD as soon as you are

given such a deadline.

appealing

denialo

benefts

I Social Security reuses

to accept your request

or reconsideration, you

should immediately -

and well beore the

deadline to appeal -contact GLADs InoLIne

at (800) 455-GLAD.

There is no opportunityor a personalappearance when you lea Request or

Reconsideration, whichis the rst stage o theappeal process. Thedecision will be made onthe record and must be

in writing. Sometimes adecision will be issuedshortly and other times itmay be months later.


43/44

Congress passed DOMA and Congress can end DOMAs

discrimination by repealing it. The Respect or Marriage Act,

a bill that would repeal DOMA, is now pending in Congress

and continues to gain supporters. I the courts do notinvalidate DOMA, then we must rely exclusively on Congress

to repeal it. I that repeal occurs, DOMA will no longer be

a bar to same-sex married couples seeking Social Securitybenets rom the point o repeal. A law repealing DOMA

may or may not address retroactive benets. Check withGLAD or guidance i DOMA is repealed in Congress.

I Congress Repeals DOMA


44/44

TheGLAD Legal InoLine

can be reached rom

1:30 4:30 p.m.Monday through Friday

at(617) 426-1350 or(800) 455-GLAD (4523)

or anytime at

www.glad.org/rights

Gay & Lesbian Advocates & Defenders

30 Winter Street, Suite 800

Boston, MA 02108

Tel: 617.426.1350 800.455.4523

Fax: 617.426.3594

www.glad.org

social security benefits and doma

Documents