Must-Know Information for Advising Same-Sex Couples on Social Security Benefits

The Social Security Administration (SSA) has had to evolve with society to a wider array of sexual orientations and gender identities. More than 7% of Americans identified as LGBT in a 2021 poll (according to Gallup), a percentage likely to grow as younger generations replace older ones.

The Supreme Court ruling in 2015 declaring same-sex marriage was constitutional made it possible for same-sex couples and their families to benefit from Social Security programs. That opened a new chapter, but it didn’t finish the book.

A subsequent class-action suit addressed the situations of survivors of same-sex couples who weren’t allowed to marry before 2015. It also triggered changes in the government’s approach to gender identity and Social Security records.

With so much that’s happened, are you prepared to advise your clients who are LGBTQ+ and their families about their Social Security rights and benefits? Here’s some information to help.

Benefits available to same-sex couples and dependents

Same-sex couples are eligible for the same benefits – spousal, survivor, family, and disability – as opposite-sex couples if they meet the necessary qualifications.

Members of married same-sex couples filing for survivors benefits after the death of one spouse must have been married for at least nine months to qualify. And to receive spousal benefits, they must:

• Have reached age 62 and have been married for at least one continuous year before filing.
• File after the spouse whose earning record is the basis for the spousal benefit application has filed for their benefits.

Similarly, eligibility rules for divorced spousal benefits apply to same-sex marriages: Ex-spouses must have been married for at least ten years to be eligible. The benefit rights of children, stepchildren and adopted children also apply uniformly across marriages.

You can find more information on other benefit qualifications on the SSA’s website’s information page for LGBTQ+ individuals and in its pamphlet, “What Same-Sex Couples Need to Know.”

Developments since the Supreme Court recognized same-sex marriage

For some couples, the legalization of same-sex marriage came too late. They had lost partners when marriage laws still discriminated against same-sex couples.

Class suits brought by the nonprofit Lambda Legal led the Social Security Administration to change how it handles such survivorship cases. Lambda has published a guide to the ruling and how to apply for survivors benefits.

The Supreme Court ruling sparked many more couples to marry. But not all. The U.S. Census Bureau estimated that in 2019, about 42% of the nearly 1 million same-sex couples were not married. Their Social Security situations are a little trickier.

Social Security qualifies those in common-law marriages for spousal and survivors benefits when the individuals live in states that recognize such marriages (a minority of states) or did so at the start of the marriage. It requires the individuals when applying for benefits to complete a form, a “Statement of Marital Relationship” (form SSA-754), and supply an affirmation from a blood relative (form SSA-753).

What about individuals who do not identify as male or female?

The SSA has recently taken more steps to align with new mores for gender identity.

When applying for a Social Security card, an individual still must choose male or female for gender because these are the only choices the SSA system allows. But the agency no longer requires legal or medical proof of the gender an applicant selects. And it is exploring “possible future policy and system updates to support an ‘X’ sex designation” for the SSN card application process.

The SSA will also allow people to update their gender marker in their Security records. Those who update their records must apply for a replacement Social Security card.

Tips for helping clients navigate Social Security

I recommend advising clients in same-sex relationships to contact the SSA to confirm their rights and benefits. This is particularly necessary when they are unmarried because rules about common-law marriages are different from state to state.

If a client had a survivors benefits application denied in the past, point them to Lambda’s advice on how to approach the SSA to have it reviewed again.

And, of course, advise every couple to consult you and each other before either member files for Social Security benefits. Advanced Social Security software can model different filing scenarios and help determine the best filing strategy for each couple’s and family’s situation.