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How being gay (and married) could impact your Social Security benefits

May 11, 2012, 8:22 a.m.

You've waited many years to be able to tie the knot legally with your special someone. Congratulations! Unfortunately, Social Security and other government agencies have lagged behind the explosion of gay marriages in revamping the benefit rules to include these newly-recognized couples. Below are a few guidelines to how gay marriage affects your Social Security survivorship and spousal benefits:

What are Social Security Spousal and Survivorship benefits?

Social Security offers spousal benefits to non-working spouses at 50 percent of their working spouse's rate -- that is, for heterosexual couples. This is designed to reward those spouses that choose to work in the home and/or raise children. The government retirement program also provides benefits to widows and widowers of workers covered under the Social Security program.

Social Security retirement benefits and gay married couples

Although gay marriage is currently legal in eight states, as well as the District of Columbia and two Native American nations, Social Security does not recognize these couples or offer them spousal and survivorship benefits. Many legally-married gay spouses stay at home to raise children and otherwise support their spouses without taking an outside job and most gay couples get married with the intention of growing old together. Still, these benefits are not currently available to them.

Change on the horizon?

Social Security relies on the Defense of Marriage Act (DOMA) of 1996 for its definition of marriage. This legislation, passed by Congress and signed into law by President Bill Clinton, defines the legal term of marriage in the United States as the union between one man and one woman. This bill not only touches Social Security, but more than 1,100 other government agencies that deal with married couples.

HOWEVER, there is very vocal opposition to the Defense of Marriage Act. In 2010, US District Court Judge Joseph L. Tauro ruled that DOMA was unconstitutional and that it denies Fifth Amendment rights to same sex married couples. Since then the Obama administration has said the White House also believes the statute to be unconstitutional, and that although they will uphold the law, they will no longer defend DOMA in court. Further challenges to DOMA are scheduled in the US Court of Appeals for April, 2012 and more cases seeking to overturn the law are in the pipeline.

As the law stands today, gay married couples should not count on receiving any Social Security spousal benefits and/or survivorship benefits. Such couples should make alternate provisions when planning their estate.

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