Question: I married my wife in a same-sex marriage ceremony in New York last year. We now live in California. My wife is on disability. Is my child now eligible for federal disability benefits?
Answer: The children of same-sex couples who marry may now be eligible for federal disability and retirement benefits, including Social Security dependents and survivors benefits, veterans dependents and survivors benefits, and military benefits. Eligibility depends on the type of benefit and either the state the marriage took place in, the state the family lives in, or the state the couple lived in when they got married – all three federal benefit programs have different rules. The good news is that a child with same-sex parents can get federal benefits even if the new parent hasn’t gone through a stepparent/second-parent adoption.
Let’s look at Social Security first. The children of disabled, retired, or deceased individuals who were insured through Social Security are eligible for dependents and survivors benefits. This is true whether the child is a biological child, adopted child, or stepchild of the insured individual. For instance, if a woman gives birth to a child and then marries her lesbian partner (the “stepparent”), if the stepparent is collecting Social Security retirement or disability benefits, the child is eligible for a dependents benefit based on the stepparent’s Social Security record.
Dependents benefits. The amount of the dependents benefit for a child is 50% of the parent or stepparent’s monthly benefit, but if other individuals are receiving a monthly benefit, such as other children or a spouse, the amount will be less. To be eligible for dependents benefits, the child must have been a stepchild for at least one year before the child can apply for benefits (in other words, the parents must have been legally married for at least a year and live in a state that recognizes same-sex marriage before the child can apply for benefits). Read more about the requirements for dependents benefits.
Survivors benefits. The amount of the benefit for a surviving child is 75% of what the deceased parent or stepparent’s monthly benefit, but will be lower if other children or the surviving spouse shares in the benefit. To be eligible for survivors benefits, the child must have been a stepchild (with parents who were legally married) of the deceased parent for at least nine months before the stepparent’s death. There are some exceptions to this rule, however: if the death of the stepparent was accidental or the result of active military duty, or if the parents legally adopted the stepchild, the marriage can have lasted fewer than nine months. Read more about the requirements for survivors benefits.
Legal issues. A stepchild in a same-sex marriage is eligible for benefits only if he or she lives in a state that recognizes same-sex marriage as legal and only if the stepparent financially supports the stepchild. The insured stepparent does not need to officially adopt the child. However, Social Security considers a child to be a stepchild eligible for benefits only if the child’s natural or adoptive parent married an insured individual after the child was born. A child’s whose natural parent married a stepparent before the child was born is not considered a stepchild, except in the case where the child was conceived before the marriage occurred. So in the situation where a lesbian or gay couple marries and then one spouse has or adopts a child, the other spouse (the stepparent) will probably have to officially adopt the child for the child to be eligible for Social Security benefits based on the stepparent’s earnings record.
The rules are a bit simpler for VA benefits. If a biological or adoptive parent of child marries a same-sex partner who is eligible for veterans benefits, the “stepchild” is eligible for benefits as long as he or she lives with the veteran (or lived with the veteran before the veteran’s death). A child is eligible for veterans dependents and survivors benefits based on a same-sex marriage if the state the veteran lived in at the time of marriage recognized same-sex marriage as legal or if the state the veteran lived in when he or she became eligible for veterans benefits recognizes same-sex marriage. This means family members are ineligible for benefits when the veteran and his or her spouse traveled to a state that recognized same-sex marriage for the purpose of getting married.
Unlike Social Security, children aren’t eligible for a monthly cash dependent benefit if their parents are disabled; instead, their parent will receive a higher disability compensation rate depending on the amount of children he or she has. Plus, children and stepchildren of veterans are eligible for dependents benefits that include educational benefits and health care through CHAMPVA. Children and stepchildren of deceased veterans are also eligible for survivors benefits, including disability indemnity compensation and death pension. See Nolo’s article on veterans benefits for same-sex spouses for more information.
While children and stepchildren of active duty military members are not eligible for separate cash payments, some forms of the service member’s compensation will increase when a dependent is added to the family. But children and stepchildren of service members are eligible for TRICARE health benefits and other benefits.
For the purpose of military benefits, stepchildren count as dependents without needing to be adopted. The stepchild’s parents do need to be legally married, which, to the Department of Defense, means that the marriage took place in a state that allows same-sex marriage. See Nolo’s article on military benefits for same-sex spouses for more information.
For more information on developments following the Windsor decision on the Defense of Marriage Act, see Nolo’s series of articles under The Supreme Court’s DOMA Decision.