Question: I legally married my same-sex partner. My wife will soon be applying for Social Security spousal benefits on my record. We live in California, but are considering moving. If we move out-of-state, will she not be able to get these benefits?
If you live in a state that recognizes same-sex marriages and you were married to a same-sex partner in a state where same-sex marriages are valid, it is now settled that you can collect Social Security benefits based on your spouse’s earnings record. But Social Security has still not announced whether spousal or dependents benefits will ever be available to same-sex couples who are properly married but live in a state that doesn’t recognize same-sex marriage. Social Security has told its employees to hold applications of those who fall into this category until the Department of Justice releases instructions.
Recently Social Security did clarify what it will do in situations where a same-sex couple was legally married in a foreign country. If the couple lives in a state where such marriages are legal and the state recognizes the foreign marriage as legal, Social Security benefits are available. But if the foreign-married couple is now living in a state that does not recognize same-sex marriages, Social Security will not pay benefits.
Since the last time I addressed Social Security’s rules on Social Security benefits for same-sex spouses, several more states have joined the ranks of “recognition states” – states that allow same-sex marriage or recognize same-sex marriages from other states. The states that currently recognize same-sex marriages as legal are California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and D.C. So if you move to one of these states, your wife will be able to get Social Security dependents benefits. Plus, some experts think that Social Security law may soon change to allow all legally married same-sex couples to get benefits, regardless of where they currently reside. We’ll keep you updated.