Social Security dependents and survivors benefits for same-sex spouses

Question: I live in California and want to marry my long-time partner in a same-sex marriage ceremony as soon as possible, now that the Supreme Court has ruled on Prop 8. Will this make me automatically eligible for Social Security benefits on my spouse’s record, now that DOMA has been overturned?

Answer: The recent Supreme Court ruling overturning part of the Defense of Marriage Act (DOMA) opens up Social Security spousal benefits to a large number of people who were ineligible before the ruling. Whether a spouse is eligible for Social Security benefits depends on whether the state in which the couple lives recognizes the couple’s marriage as valid. When DOMA was written into law in 1996, there were no states that had legalized same-sex marriage, so Social Security benefits before DOMA’s enactment and during DOMA’s reign were available only to hetero couples. With the Supreme Court overturning DOMA, same-sex spouses in states who were married in a state that allowed same-sex marriage and who lives in a state where same-sex marriage are recognized are suddenly eligible for Social Security benefits based on their spouses’ earnings records. (Note that if you were married before the state you live in recognized same-sex marriages, Social Security is not yet granting spousal benefits.)

The states in which same-sex spouses are now eligible for Social Security dependent and survivors benefits are California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, New York, Vermont and Washington and D.C. But to qualify for benefits based on a spouse’s, or deceased spouse’s, earnings record, Social Security requires that the marriage must have lasted a certain length of time. Let’s take a look at the various types of spousal benefits and the length of marriage required for eligibility.

To receive spousal retirement benefits as a spouse (a type of dependents benefit), you must have been legally married for at least a year and you must be at least 62. Note that even if you are eligible for retirement benefits on your own work record, you may be able to get a higher monthly Social Security check based on your spouse’s earnings record. Claiming early retirement benefits at age 62 may allow you to not have to claim your own retirement benefits until age 67 or 70.

For widow’s or widower’s benefits (a type of survivors benefit), you will be eligible for Social Security survivors benefits if you are at least 60 and you were legally married to your spouse for at least nine months before death. There are, however, exceptions to this rule. If you are the mother or father of your spouse’s biological child, or you legally adopted your spouse’s child while you were married and before the child turned 18, or your spouse’s death is the result of a violent accident, or your spouse’s death occurred while on active duty in the military, the nine month requirement does not apply.

For ex-spouse dependents or survivors benefits, you must have been married to your former husband or wife for at least 10 years.

For more information, see Nolo’s articles on Social Security dependents benefits and Social Security survivors benefits.

UpdateFor an update, see this June 26, 2014 post on Social Security benefits for same-sex couples.