Why DOMA’s Reversal May Mean Less Social Security Money for Some Same-Sex Couples

With the Supreme Court’s overturning of part of the Defense of Marriage Act (DOMA), many same-sex couples who are already legally married in the states they live in are suddenly married in the eyes of Social Security. While this is good news for same-sex spouses who are eligible for Social Security disability insurance, the news may not so good for those who receive SSI, adult child benefits, or survivors benefits.

SSI

While being married per se doesn’t affect SSI eligibility, having a spouse can affect your eligibility if your spouse has income. If you live in a state that recognizes same-sex marriage, and your husband or wife has income, Social Security will attribute some of his or her income to you (this is called deeming spousal income). Because of SSI’s strict income limits, your new spouse’s income may make you ineligible for benefits, or reduce your benefits by the amount of your countable income.

If, on the other hand, your new spouse is also disabled, or over 65, Social Security will reassess your eligibility for SSI as a couple. The SSI asset limit for a couple is much lower than the amount two individuals are allowed to own, and in most states, the income limit for a couple is only one and a half times the income limit for an individual (instead of twice).  These stricter limits may make you ineligible for SSI now that you are legally married. In addition, the monthly SSI payment for a couple is only $1,066, so you may see your payment decrease (the SSI amount for one person is $710).

There’s one way that having your same-sex marriage finally recognized by Social Security could help you with SSI. If you’ve been living with your partner/spouse, and your spouse was paying your expenses, Social Security was probably not paying you the full SSI amount. If someone else pays for your food and shelter, the SSI counts this as “in-kind” income. Generally, Social Security keeps one-third of your SSI payment in this circumstance. But if you are now legally considered married in your state and it’s your legally recognized spouse who’s paying your expenses, the in-kind income rule doesn’t apply. You will be entitled to the full SSI amount, less any countable income you or your spouse have.

Who will be considered married by Social Security? If you and your new spouse live in a state in which you are considered legally married, Social Security will consider you legally married. But if you get married in a state that recognizes same-sex marriage as valid and you move to a state that doesn’t recognize same-sex marriage, Social Security may not consider you married. Some legal experts say that, for SSDI purposes, if you hold yourself out to the public as married, Social Security should consider you married even if you move to a state that doesn’t recognize same-sex marriage. This remains to be seen; we may see this issue resolved in the coming months.

For SSI purposes, if you can inherit from your spouse after your spouse passes away (without being named in your spouse’s will), this counts as being married.

 Adult Child Benefits

If you are receiving disability benefits under your parent’s work record, as an “adult child,” having your same-sex marriage recognized by Social Security due to the Supreme Court ruling will cause your SSDI benefits to stop. But if you marry a person with disabilities who is also receiving Social Security benefits, you may not lose your benefits when you get married.

Survivors Disability Benefits

If you are receiving survivors disability benefits, the Supreme Court ruling could negatively affect your benefits. You can receive survivors disability benefits if you are over 50 and disabled, your spouse died while eligible for Social Security retirement or disability benefits, and you are unmarried, or if you got married after the age of 50. So, if you married your same-sex partner after the age of 50, your benefits won’t be interrupted when Social Security recognizes your same-sex marriage. But if you were legally married before age 50, you could have a problem. Talk to a Social Security lawyer if you’re concerned.

Survivors Retirement Benefits

If you’re receiving retirement benefits as a surviving spouse, your benefits could be affected by the Supreme Court ruling. You can receive survivors retirement benefits if you are at least 60 years old, your spouse died while eligible for Social Security retirement or disability benefits, and you are unmarried, or if you got married after the age of 60. So, if you married your same-sex partner after the age of 60, your benefits won’t be interrupted when Social Security recognizes your same-sex marriage. But if you were legally married before age 60, you could have a problem. Talk to a Social Security lawyer if you are in this situation, or considering marrying your same-sex partner.