When will Social Security act on non-recognition, same-sex benefits?

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By Jamie Rubenstein

Against the backdrop of last June’s strikedown of a key portion of the Defense of Marriage Act, the year-end guessing game is on as to just when the Social Security Administration might act on spousal benefits in states that don’t recognize same-sex marriage.

The agency does say it is indeed processing “some retirement spouse claims for same-sex couples and paying benefits where they are due” in the recognition states. It is also paying claims where the Social Security holder “is domiciled at the time of application” as well as claims “pending a final determination” in those states.

But in those thirty-six non-recognition states, the agency said it is “holding these claims while we work with the Department of Justice to develop and implement additional policy and processing instructions.”

As some pro-LGBT lawyers and finance planners see it, that still could take months. “I believe it could come toward the end of 2014,” said San Francisco attorney Frederick Hertz; he is the author of “Making It Legal,” a guide to same sex marriage, domestic partnerships and civil unions.

In contrast, San Diego attorney Michele Lowenstein said she was heartened by the SSA’s recent online posting that the agency now encourages “individuals who believe they may be eligible for Social Security benefits to apply right away to protect against the loss of any potential benefits.”

“That’s the first time I’ve seen that kind of notice about the need to act right away,” observed Lowenstein, who encourages clients to watch the SSA website for any changes.

A press spokeswoman for the agency noted that a same-sex couples section is now available through the SSA main site.

Pro-LGBT attorneys agreed the August 2013 tax ruling by the IRS recognizing same-sex marriages regardless of state residency—in effect, upholding “state of celebration”—remains a key pronouncement toward other federal agencies clearing up their rules and regulations on same sex status in tune with the Supreme Court DOMA ruling.

As for the immigration issue, “the question is when will ‘state of celebration’ become more universal” on the federal front, according to Arlington, Massachusetts finance planner Deb Neiman, who said that social security issues are very relevant “for those couples who got married in Massachusetts and now want to spend their golden years in Texas.”

Regarding civil unions and domestic partnerships, it was noted that the rules vary in both recognition and non-recognition states.

“Some of these federal agencies are absolutely silent on the issue of domestic partnerships and civil unions,” said Hertz, citing the legal uncertainties and confusions dependent on individual state law. Some of those laws have undergone new legal challenges following DOMA; Hertz said, “It all remains very complicated.”

As for the SSA, Lambda Legal said in August 2013, “no matter what state you reside in, please go to your local SSA office or to the SSA website and apply if you believe you may be entitled to benefits. Although SSA has yet to issue specific guidance on eligibility for benefits for same-sex couples nationwide, including eligibility depending on whether you live in a state that bars marriage and recognition, a state with some alternative status like civil union, domestic partnership, or designated beneficiary, or a marriage state–SSA should still accept your application for benefits while these determinations are being made.”

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