Social security survivor benefits may seem like a relatively straightforward issues to understand. Indeed, it can be for the majority of people, but with the Supreme Court ruling in Obergefell v. Hodges that states must recognize the right of all couples, including same sex couples, to marry, the issue of social security survivor benefits for spouses and even for children should at least be touched upon. The opinion in Obergefell may be as monumental of an opinion as the Court ever penned. While only history will tell, the social consequences may be of the same magnitude as the Supreme Court’s opinion in Brown v. Little Rock Board of Education, requiring racial integration of schools across the country.

The implications ripple throughout the law, from tax law to social security benefits to family law, estate planning, bankruptcy and even elder law. Less than a year prior to the writing of this blog there was a patchwork of treatment for same sex couples, which was anything but similar in its treatment of two similarly situated couples, with the only difference being what jurisdiction the couple lived in. Social Security indeed denied some same sex life partners survivor benefits when a couple resided with each other as spouses for decades. Even before the Supreme Court heard oral arguments in Obergefell some who be widows/widowers (but for the state law denial of this right) sued the Social Security for this disparate treatment.

Following the high Court’s ruling in June, 2015 the Social Security reviewed its rules and regulations in regards to same sex couples and survivor benefits. Since the Social Security Administration deferred to state law on the question of whether a legal marriage existed there is still much catching up that needs to occur with potentially millions of couples in the large amount of jurisdictions that by virtue of the Supreme Court’s ruling implicitly legalized same sex marriages. Since survivor benefits are, at least in part, determined by the length of the marriage, these issues matter. The existence of a valid marriage also matters for similar issues such as receipt of Supplemental Security Income (SSI) or Medicare eligibility, the ability to tap into the earnings of a former spouse or even perhaps when the Social Security Administration claims that it overpaid someone. The rules in regards to overpayments changed as recently as March 16, 2016. As such, it is a fluid situation, what is true today may change in the near future.

If you applied for benefits in the past but were denied, you should reapply with the Social Security Administration. The appeal period is, in most circumstances, 60 days. To claim benefits as a surviving spouse, the parties must have been married at least nine months; in order to claim a spouse’s earnings for purposes of retirement benefits, the parties must be married for at least a year. To claim the earnings of a former spouse, the parties must have been married at least ten years and the applicant must be at least 62 when he/she applies. Since same sex relationships only became legal in the last ten years or so, this issue will only rear itself in the coming few years. The last issue of whether a child is entitled to collect survivor benefits is also determined by state law. Specifically, a child is defined as a person who can inherit as a direct issue of the deceased under the state’s intestacy law. As such, both biological and adopted children are treated the same.  

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