Social security policies regarding benefits for same-sex partners

Spouses’ entitlement to benefits has long been an important way that Social Security helps protect disabled and retired partners of workers from poverty. 

Until recently, survivors benefits were not extended to the same-sex partners of workers who were not allowed to marry due to state laws since deemed unconstitutional.

In 2016, The U.S. Supreme Court’s decision in the case of Obergefell v. Hodges determined that same-sex couples have a constitutional right to marry — in all 50 states — and have their marriage recognized by other states.1

More recently, the Respect for Marriage Act reaffirms some of Obergefell’s protections and mandates that states and the federal government must recognize same-sex marriages as legally valid.2 

Individuals who were unconstitutionally denied the right to marry can file a new claim or request that a previous claim be reopened by the Social Security Administration. If it is found that they were previously denied benefits and they qualify under relevant Supreme Court rulings, they may be due retroactive benefits.3

Why LGBTQIA+ spouses’ access to benefits matters

Workers and spouses may be entitled to Social Security benefits or a higher benefit amount based on a marital relationship — and survivor benefits that extend to children or stepchildren can also be impacted by previous denial of the right to marry. Same-sex spouses and partners who qualify but have been previously denied benefits may still be “doing without” in ways they don’t have to.

In fact, surveys indicate that adults who identify as LGBTQ+ are more likely to face economic insecurity; in fact, a 2021 Federal Reserve survey found only 67% percent of LGBTQ+-identifying adults reported they were “doing at least okay” in financial terms, compared with 78% percent overall. This difference is even more pronounced among transgender and nonbinary Americans.4

For decades, many American retirees have relied on Social Security benefits to provide a significant portion of their retirement income; now, same-sex spouses may no longer be denied the often indispensable benefit of a stable source of income in retirement.

This policy shift has enormous potential to impact older Americans who are now eligible for benefits based on a deceased spouse’s (or, in the case of those who were denied marriage rights, partner’s) earnings.

It’s vital for financial professionals to make sure their clients understand that the Social Security Administration recognizes same-sex marriages in all states, as well as some non-marital legal relationships such as civil unions and domestic partnerships.

Who qualifies for survivor benefits based on marriage

Exceptions apply but generally, qualifying survivors must have been married to the worker who passed away for at least nine months, and must not have remarried before the age of 60 (age 50 if disabled).3

Same-sex partners and spouses may qualify for Social Security survivor benefits, potentially including retroactive benefits, when they can demonstrate meeting either of these criteria:5

  1. They would have been married when their partner passed away had state law not prevented them from doing so; or
  2. They would have been married longer, and met Social Security’s 9-month marriage rule, had state law not prevented them from marrying earlier.

How Advisors Can Help LGBTQIA+ Clients Receive Entitlement Benefits

Individuals seeking to file a new claim or request the Social Security Administration reopen a previous claim should prepare to respond to questions and provide evidence to support a determination. This may include documentation of any ceremonial marriage, evidence of domicile, reasons for not marrying earlier, shared property, inheritance from the deceased partner, shared children, beneficiary designations, and other items that may serve to document the relationship.

The Social Security Administration advises applying for survivor benefits even if a surviving partner is not sure they’re entitled, and a timely application can help protect against loss of benefits, since the filing date may be used to determine when benefits begin.

Clients should also be informed that unlike the application for retirement, spousal and disability benefits, survivor benefits cannot be applied for online. Individuals should contact their local Social Security office or call 1-800-772-1213 to inquire and apply.3

Provide client-focused service for today’s families

Families have long been diverse and complex; laws and regulations are beginning to reflect and respect this diversity, but it remains important for same-sex partners and spouses to be aware of steps they can take to preserve the integrity of shared assets — especially in order to protect surviving partners and children.

Learn more about how your approach to client service can help more families move toward their goal of financial security in retirement. Click below to download our whitepaper today.


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