Social Security Spousal Benefits

En Español

Q. Will same-sex spouses, widows and widowers be eligible to receive Social Security spousal benefits, wherever they live?

A. In most instances, yes. Following the Supreme Court’s 2013 United States v. Windsor ruling, which struck down a law barring the federal government from recognizing the marriages of same-sex couples, Social Security spousal retirement, survivor, death and disability protections became available to many same-sex spouses. However, the federal Social Security Act looks to the state law of the wage earner’s “place of domicile” (where they live or lived) to assess who is a spouse for federal benefits purposes. As a result, even after Windsor, the Social Security Administration followed a policy deeming married same-sex spouses to be unmarried, and the spouses, widows and widowers of wage earners to be ineligible for spousal benefits, if the wage earners lived in states that refused to recognize their marriages. Lambda Legal has two lawsuits pending on behalf of surviving spouses denied survivors’ benefits because they lived in states that disrespected their marriages, challenging this policy as unconstitutional. Now that every state must give legal recognition to validly entered marriages of same-sex couples, going forward this “place of domicile” policy should no longer be a barrier for same-sex spouses, whose marriages should be treated no differently than those of other spouses.

The Social Security Administration has issued guidance for same-sex spouses, which you should consult, along with general guidance on the range of available Social Security benefits. You should also be aware that spousal benefits may also be available to those who entered into some states’ alternative statuses, like civil union and domestic partnership.
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Q. Will surviving same-sex spouses be eligible to receive spousal benefits if the wage earner spouse passed away while living in a non-recognition state before the Supreme Court’s marriage ruling?

A. We await guidance from the Social Security Administration on its policies for evaluating claims of survivors whose wage earner spouses passed away in a state denying legal recognition to the couples’ marriages prior to the Supreme Court’s marriage ruling. We will be advocating that the Social Security Administration ensure that these survivors do not face further discrimination. Contact one of our organizations if you face obstacles to eligibility for Social Security benefits because of the “place of domicile” policy.
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Q. Will we be eligible for Social Security spousal benefits as soon as we get married?

A. Not necessarily. The Social Security Act specifies minimum marriage duration requirements to be eligible for some spousal benefits. To be eligible for survivor’s benefits and a lump sum death benefit, a widow or widower must have been married at least nine months immediately prior to the wage earner spouse’s death, unless an exception applies. To be eligible for spousal retirement and disability benefits, the couple must have been married at least twelve months prior to applying for the benefits. Be aware of these duration requirements when you are making decisions about when to enter into long-awaited marriages. Consider getting married sooner if you anticipate needing these spousal benefits.
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We encourage everyone who believes they may be eligible to apply for Social Security benefits, and to pursue their administrative appeals if they are denied benefits for a reason they believe is unjustified. While we await further guidance after Obergefell v. Hodges from the Social Security Administration, the Social Security Administration should still accept all applications for benefits. Getting an application on file soon could be important if you are determined to be eligible. You can receive benefits according to your date of application, so each month of delay in filing an application can result in the loss of one month of benefits.  

This guidance is intended to provide general information. It should not be construed as legal advice or a legal opinion on any specific facts or circumstances, and does not create an attorney-client relationship. None of the organizations publishing this information can ensure the information is current or be responsible for any use to which it is put.