Last time, I talked about the importance of health care powers of attorney and health care surrogacy laws. Today's topic is about Social Security benefits and their relation to the status of legal "spouse."
In most states, a same-sex partner is not a legal spouse. And, thanks to the Defense of Marriage Act (DOMA)- the law enacted to make super-duper sure that any given state does not have to give full faith and credit to a legal same-sex marriage from another state- the word "spouse" means opposite sex married partners only. Even if a person had a legal marriage to someone of the same-sex in, say, Massachusetts.
Here's how that distinction affects Social Security benefits:
According to the Social Security Administration, some of the Social Security taxes you pay go towards survivors insurance for workers and their families. And, when you die, your spouse, children, and dependent parents may be eligible for these benefits. Your spouse will be able to receive full survivor benefits at age 65, reduced benefits at age 60. However, a spouse taking care of your children may receive benefits at any age. The amount of benefits that you, your spouse, or your children receive depends on how much you put into Social Securtity via payroll taxes during your career.
In addition to survivors insurance, spouses are also eligible for a spousal benefit. Generally, this benefit is based on the other spouse's earnings and is about one-half of what the working spouse receives. For more information about the spousal benefit read this Fox news article discussing the pesky timing problem that those who actually get to receive the spousal benefit have of when to take the spousal benefit (before one spouse retires, or after?) Gosh. If it's so darn complicated, maybe we don't even want the benefit!
Yadda yadda yadda. I bet you can guess what "spouse" does and does not mean with regard to Social Security benefits. That's right. An opposite sex partner only.
If you are gay, this means that while you pay survivors insurance via your payroll taxes, survivors insurance goes towards other peoples' spouses. Not yours. Not the person who you spent your life with. And currently, 12 million of the 45 million people receiving social security benefits are spouses or children of deceased or disabled workers. That's 1 in 4. Same-sex partners and spouses, as well as some children of gay and lesbian couples, are not included in this number. This denial is estimated to cost the LGBT community $124 million per year in unaccessed benefits.
So yes, we have benefit #2 (survivors insurance) and #3 (spousal benefit) that same-sex couples are denied because they happen to have the same genitals.
Again, this doesn't matter, right? Because all gay people, especially old gay people, are rich, right?
Okay, I admit. I'm kidding. And in all seriousness, like other benefits of marriage, this denial of Social Security benefits will hit poor and working class gay families harder than they will hit more well-off gay families.
Evan Wolfson says it well,
"Compared with the relatively cheap option of marriage, the creation of a legal web meant to simulate some of the protections of marriage is an expensive and time consuming project that simply cannot serve as a viable alternative for people of lesser means.
Working and middle-class same-sex couples who cannot afford legal services are therefore without the ability to properly plan forms."
Same-sex couples are able to simulate some of the benefits and protections of marriage, through crafty estate planning. Crafty estate planning, of course, takes a lawyer, something that working class and poor families cannot always afford. And because free and low-cost legal aid program operate on a triage system- where the most urgent cases like eviction take precedence over less urgent ones like estate planning- the poor do not have many options to receive estate planning services from a professional.
At the same time, the Social Security benefits are an example of a marital benefit that cannot be duplicated. Currently, there is no legal way for a same-sex partner to receive any type of Social Security benefit based on the work of his or her partner.
Here are some legal options that would grant Social Security survivors insurance to surviving same-sex partners:
1) Repeal the Defense of Marriage Act (DOMA), so same-sex spouses legally married at the state level will be eligible for federal benefits.
2) Amend the Social Security Act to grant survivor's benefits to same-sex surviving partners.
3) Grant same-sex couples the right to be legal spouses.