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Same-sex marriage & Social Security

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POSTED September 14, 2012 9:29 p.m.

Q. I am a 61-year-old gay man who is about to retire. I have a 60-year-old partner. We have been together now for 38 years. I have worked all my life. My partner has spent most of his life as a stay-at-home husband and father. (Yes, we raised a son and daughter, both of whom are now very successful.) I really enjoy your column and have learned a lot from it. But I have never seen a column in which you have discussed Social Security issues that impact gays and lesbians, especially with respect to benefits for spouses. What can you tell us about this?

A. Frankly, there isn't much to tell you that doesn't apply to everyone else. In almost all respects, Social Security is the same for straight people and for gay people. You said you worked all your life. So you will qualify for reduced Social Security retirement benefits when you turn 62. Or you can choose to wait until 66 to get your full rate. Or you can even wait until age 70 to retire, at which point you would get your full benefit plus a 32 percent delayed retirement bonus.

But there is a huge difference for gays and lesbians when it comes to spousal benefits. There aren't any!

I am used to telling people that Social Security follows state law when it comes to marital relationships. In other words, if your state says you are legally married, then Social Security will consider you legally married. Of course, all states recognize routine marriages between a man and woman. But this rule becomes an especially important issue for people involved in "common law" relationships. There are only a few states that recognize common law marriages, so there are only a few states where people in such relationships will qualify for spousal benefits from Social Security.

As most people know, there are also only a few states that recognize same sex marriages as being legal. So normally I would be able to tell you that if you were married in one of those states, your partner would qualify for Social Security spousal benefits on your record.

Unfortunately, as I'm sure you know, there is a federal law that trumps state laws on these matters. It has the silly name (in my opinion) of the "Defense of Marriage Act," or DOMA. Among other things, that law essentially says that when it comes to any kind of spousal benefit from a federal program (and Social Security is the biggest of all federal programs), those benefits can only be paid if the marriage is between a man and a woman.

As one might guess, that law was passed by a very conservative Congress in 1996. President Clinton signed the bill into law and has pretty much regretted that move ever since. Obviously, President Bush supported DOMA. And President Obama has decided not to work to repeal the law (you can only fight so many battles at one time), but he has instructed the Attorney General not to defend the law in courts whenever challenges are mounted against it. Predictably, the Republican leaders in the House of Representatives have instructed the House General Counsel to defend the law when the Justice Department won't.

I know I am putting my liberal stripes on display here. My conservative readers will take offense at what I am saying and will send emails blasting me for my views. But I just have a hard time understanding why the law allows a divorced spouse in a heterosexual relationship who was married for only 10 years to claim full benefits from the ex-spouse's Social Security record — and possibly be due benefits from another account if there was a second failed marriage that lasted 10 years. Yet the partner of the person who wrote this letter, someone who has been together as part of a couple for almost 40 years, someone who has raised two wonderful kids, can't claim a nickel of his partner's Social Security benefits. Where is the justice in that?

Q. I am a woman who was married to my first husband for 12 years and to my second husband for 15 years. I haven't married since my last divorce. My first ex husband died. My second ex husband is still living. I am 61 years old and plan to retire from my job soon. Can you please tell me what rights I have regarding Social Security from my ex husbands?

A. For obvious reasons, I put your question right behind the first question about same sex marriages. I'm doing that, in part, to clarify what I wrote about divorced spouses possibly being eligible for benefits on two accounts.

Actually, you are potentially eligible on three accounts: your own and each of your ex husband's. BUT, you will not get benefits from all three accounts. You generally will only get Social Security checks on the record that pays the highest rate.

Here is how it usually works. You will be paid your own Social Security benefit first. Then they will look to your ex-husband's accounts to see if your benefit can be supplemented with anything from their records.

For the time being, you can forget husband number two because he is still alive, meaning you are only due a small-ish divorced wife's rate (anywhere from 30 to 50 percent of his benefit). But you are due much higher widow's benefits from your first husband. That rate can be from about 80 percent, if you take benefits at 62, up to 100 percent, if you wait until age 66.

And like any widow, you will have the option of taking reduced benefits on one record and later switching to full benefits on another record. For example, you could get about 75 percent of your retirement benefit at age 62 and at age 66, switch to 100 percent of your divorced widow's benefit.

And assuming husband number two dies before you do, you could then switch to benefits on his record IF they pay a higher rate than whatever you are getting at the time.

 

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