I-5-1-19.Processing Appeals Involving Same-Sex Marriages (United States v. Windsor)

Last Update: 7/29/14 (Transmittal I-5-1-19)

Table of Contents
I Purpose
II Background
III Definitions
IV Referrals for a Legal Opinion
V Case Processing
VI Case Holding and Procedures
VII Inquiries

ISSUED: February 12, 2014

REVISED: July 29, 2014

I. Purpose

This temporary instruction (TI) advises Office of Disability Adjudication and Review (ODAR) employees of new policies and procedures for adjudicating claims involving same-sex marriages and non-marital legal relationships in light of the Supreme Court's decision in United States v. Windsor.

When a same-sex marriage or non-marital legal relationship is not material to the decision, do not apply these instructions.

II. Background

On June 26, 2013, the Supreme Court issued a decision in United States v. Windsor finding Section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional. Because of the decision, the Social Security Administration (SSA) is no longer prohibited from recognizing same-sex marriages. SSA is working with the Department of Justice to implement the Windsor decision. We will update this TI periodically as additional instructions become available.

III. Definitions

State – For purposes of determining marital status, the term “State” includes any one of the 50 United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands.

Domicile – The term “domicile” means the place where a person has his or her true, fixed, and permanent home to which he or she intends to return whenever away. As explained in GN 00305.001B.2., every person has a domicile and can only have one at a time.

IV. Referrals for a Legal Opinion

In some situations, Program Operations Manual System (POMS) processing instructions require that adjudicators request a legal opinion from the Office of the Regional Chief Counsel (ORCC). In these cases, the opinion generally will be included with documentation the field office (FO) forwards to the servicing hearing office (HO). However, there may be instances in which neither the legal opinion nor the summary is included in the documentation provided.

If the POMS section(s) cited in the pertinent case processing instructions in V below requires a legal opinion and neither the opinion nor the summary is included in the file, HO staff will refer the issue to the respective ODAR Regional Office (RO). The RO will refer the claim to the Regional Chief Counsel (RCC) for a legal opinion, consistent with the guidance in POMS GN 01010.820.

There also may be instances in which the summary of the legal opinion is provided, but not the legal opinion itself. If the information in the summary satisfactorily resolves the issue, there is no need to request the entire legal opinion. However, HO staff may request the entire detailed opinion from the RCC, through the ODAR RO.

An Office of Appellate Operations adjudicator who believes an RCC opinion is necessary to decide a same-sex marital relationship case will consult his or her Division Chief Administrative Appeals Judge.

V. Case Processing

SSA has issued instructions for processing the title II claims types identified in V.A.1., V.B.1., and V.C.1. below, and title XVI cases identified in V.D.1. below. All such claims filed on or after June 26, 2013, or that were pending final determination at the time of the Supreme Court's decision, will be processed under these instructions. If a case does not meet the requirements identified in V.A.2., V.B.2., V.C.2., or V.D.2. and V.D.3. below, hold the case pending further instructions as described in V.A.3., V.B.3., V.C.3., and V.D.4. below.

Processing instructions for divorced spouse, surviving divorced spouse, parent, and disabled adult child claims, and all claims involving a child claimant in which the parent-child relationship is in question, will be issued later.

NOTE:

When a same-sex marriage or non-marital legal relationship is not material, process the claim without applying these instructions. For example, do not apply these instructions when a number holder (NH) involved in a same-sex marriage applies for retirement benefits on his or her own record.

A. Aged Spouse Benefits

1. Claim Types for Aged Spouse Benefits

Instructions are now available in POMS GN 00210.100 for processing aged spouse claims involving material same-sex marriages or non-marital legal relationships. Aged spouse claims types can be identified by the following beneficiary identification codes (BIC): B, B1, B3, B4, B8, BA, BD, BG, BH, or BJ. For more information on BICs, see POMS SM 00550.010.

2. Processing Considerations

With the exception of claims identified in A.3. below, ODAR staff will process claims for aged spouses involving material same-sex marriages or non-marital legal relationships by following normal case processing procedures and complying with the guidance below.

For purposes of title II and Medicare benefits:

  • We will recognize ceremonial marriages using the policy and applicable practices set out in GN 00210.100 as well as GN 00210.002, GN 00210.003, and GN 00210.006.

  • We will also recognize non-marital legal relationships (e.g., civil unions) using the policies and applicable practices set out in GN 00210.004.

  • The claimant must meet all other factors of entitlement for spouse's benefits as described in 20 CFR 404.330. When considering the 1-year duration requirement, do not consider the date of the Windsor decision; use the date the couple had a ceremonial marriage or established a non-marital legal relationship on or after the date the State permitted same-sex marriage.

EXCEPTION:

Hold the case if the claimant would only meet the alternative to the 1-year duration requirement based on §404.330(a)(2), as the natural parent of the NH's child.

3. Aged Spouse Claims to Hold

ODAR staff will hold claims in which any of the following is material to the claim:

  • The ceremonial marriage was celebrated in a State during a period in which Column II in GN 00210.003, Date Same-Sex Marriages Were Permitted in the State, indicates “hold.”

  • The claimant alleges a foreign (i.e., outside the States), same-sex legal relationship other than marriage.

  • The claimant alleges that he or she, or the NH, had a prior non-marital legal relationship to an individual other than his or her current spouse.

  • The claimant would only meet the alternative to the 1-year duration requirement based on §404.330(a)(2), as the natural parent of the NH's child.

B. Surviving Spouse Benefits

1. Claim Types for Certain Surviving Spouse Benefits

Instructions are now available in POMS GN 00210.400 for processing certain surviving spouse claims involving same-sex marriages or non-marital legal relationships, specifically widow's and widower's claims and disabled widow's and widower's claims. These surviving spouse claims types can be identified by the following BICs: for widow(er)'s claims, D, D1, D2, D3, D8, DD, DG, DH, DJ, or DK; and for disabled widow(er)'s claims, W, W1, W2, W3, W4, W5, W9, WB, WF, or WG. For more information on BICs, see POMS SM 00550.010.

2. Processing Considerations

With the exception of claims identified in B.3. below, ODAR staff will process widow(er)'s and disabled widow(er)'s claims involving same-sex marriages or non-marital legal relationships, including Medicare-only claims when the hearing or appeal is on a disability determination related to Medicare entitlement for Medicare Qualified Government Employee claims, by following normal case processing procedures and complying with the guidance below.

For purposes of title II and Medicare benefits:

  • We will recognize ceremonial marriages using the policy and applicable practices set out in GN 00210.400 as well as GN 00210.002, GN 00210.003, and GN 00210.006.

  • We will also recognize non-marital legal relationships (e.g., civil unions) using the policies and applicable practices set out in GN 00210.004.

  • The claimant must meet all other factors of entitlement for widow's or widower's benefits as described in 20 CFR 404.335. When considering the 9-month duration requirement, do not consider the date of the Windsor decision; use the date the couple had a ceremonial marriage or established a non-marital legal relationship on or after the date the State permitted same-sex marriage.

EXCEPTIONS:

Hold the case if the claimant would only meet the alternative to the 9-month duration requirement based on §404.335(a)(3). Also hold any case in which the claimant has remarried, even if he or she meets one of the conditions in §404.335(e)(1) through §404.335(e)(3).

3. Surviving Spouse Claims to Hold

ODAR staff will hold claims involving any of the following:

  • The claimant alleges a foreign (i.e., outside the States), same-sex legal relationship other than marriage.

  • The claimant alleges that he or she, or the NH, had a prior non-marital legal relationship to another individual.

  • The claimant would only meet the alternative to the 9-month duration requirement based on 20 CFR 404.335(a)(3).

  • The claimant remarried after the NH's death.

C. Lump-sum Death Payment

1. Claim Types for Lump-sum Death Payment

Instructions are now available in POMS GN 00210.600 for processing certain lump-sum death payment (LSDP) claims involving same-sex marriages or non-marital legal relationships. LSDP claims not filed in conjunction with a claim for monthly benefits can be identified by the following Payment Indicator Codes (PIC): G1, G2, G3, G4, G5, G6, G7, G8, or G9. For more information on PICs, see POMS SM 00550.010.

2. Processing Considerations

With the exception of claims identified in C.3. below, ODAR staff will process LSDP claims involving same-sex marriages or non-marital legal relationships by following normal case processing procedures and complying with the guidance below.

For purposes of title II benefits:

  • We will recognize ceremonial marriages using the policy and applicable practices set out in GN 00210.600 as well as GN 00210.002, GN 00210.003, and GN 00210.006.

  • We will also recognize non-marital legal relationships (e.g., civil unions) using the policies and applicable practices set out in GN 00210.004.

  • The claimant must meet all other factors of entitlement for the LSDP as described in 20 CFR 404.391, which applies to widow(er)s who were living in the same household as defined in 20 CFR 404.347, or 20 CFR 404.392.

EXCEPTIONS::

Hold the case if the claimant would only meet the requirement(s) of §404.392(a)(1) based on entitlement (or entitlement had a timely application been filed) to either widow(er)'s benefits predicated on the alternative to the 9-month duration requirement in §404.335(a)(3) or mother's or father's benefits (as described in §404.339) on the work record of the deceased NH for the month of his or her death.

3. LSDP Claims to Hold

ODAR staff will hold claims involving any of the following:

  • The claimant alleges a foreign (i.e., outside the States), same-sex legal relationship other than marriage.

  • The claimant alleges that he or she, or the NH, had a prior non-marital legal relationship to another individual.

  • The claimant, who was not living in the same household with the NH, would only meet the alternative to the 9-month duration requirement for purposes of entitlement to widow(er)'s benefits based on 20 CFR 404.335(a)(3).

  • The claimant, who was not living in the same household with the NH, would only meet the requirement(s) of 20 CFR 404.392(a)(1) based on entitlement to mother's or father's benefits (as described in §404.339).

  • The claimant filed a LSDP claim more than two years after the NH's death, and he or she alleges that the law then prohibiting the recognition of same-sex marriage (Section 3 of the “Defense of Marriage Act”) was the reason for his or her failure to file within the prescribed two-year limit.

D. Supplemental Security Income (SSI)

1. Introduction

Instructions are now available in POMS GN 00210.800 for processing some SSI claims, appeals, and post-eligibility actions that require determining a same-sex couple's marital status for SSI purposes.

For initial claims, SSA will recognize a same-sex marriage as early as the date of the application as described in 20 CFR 416.325, 416.340, and 416.345. For post-eligibility actions, SSA will recognize a same-sex marriage as of June 26, 2013.

A same-sex marriage may affect SSI eligibility and payment amounts. Although in the guidance that follows, we refer to the claimant as one of the persons in the marital relationship, an SSI claimant may be a child whose eligibility or payment amount depends on the parental status of a member of a same-sex couple.

2. Determining a Same-sex Couple's Marital Status for SSI Purposes

Consider the claimant married if we may recognize the marital relationship for SSI purposes using the policies and applicable practices set out in GN 00210.800, particularly GN 00210.800B and GN 00210.800E.

NOTE:

SSA will not consider a same-sex couple as married for SSI purposes based on either entitlement to title II benefits stemming from a same-sex marriage or non-marital legal relationship or the couple's holding themselves out to the community as married.

Do not use the instructions in GN 00210.800 to determine marital status for SSI purposes in situations listed in GN 00210.800C, which includes non-marital legal relationships (e.g., civil unions and domestic partnerships).

3. Processing Considerations

For SSI claims and appeals, the claimant must meet all SSI eligibility factors as described in 20 CFR 416.202.

For post-eligibility actions related to a change in marital status for SSI purposes, consider whether:

4. SSI Claims to Hold

ODAR staff will hold claims or post-eligibility actions when the SSI claimant is a child whose eligibility or payment amount depends on the parental status of a member of a same-sex couple.

VI. Case Holding and Procedures

Adjudicators must hold or continue to hold any cases identified in V above.

POMS GN 00210.005B.3. and Emergency Message 11043 SEN REV4 instruct FOs to fax a copy of a request for a hearing involving a case in which a same-sex marriage or non-marital legal relationship is material directly to the servicing HO within five business days, using a 501 Case Flag annotated “Special Case Processing – United States v. Windsor.” The processing center or FO must provide a complete folder to ODAR within 30 days from the date the hearing request is filed.

A. Holding Cases at the Hearing Level

HO staff must take the following steps in the Case Processing and Management System (CPMS):

  1. Identify the case as a United States v. Windsor case.

  2. Add the Other case characteristic “U.S. v. Windsor (WIND).”

  3. If the case has yet to have a hearing, place it in PRE status.

  4. If a hearing is scheduled, cancel the hearing and place the case in PRE status.

  5. If a hearing has already been conducted, place the case in POST status.

  6. When placing cases in PRE or POST status:

    • Use development group “Other” and development type “Miscellaneous”;

    • Annotate the instructions field to state, “Hold case pending further instructions concerning U. S. v. Windsor (WIND)”;

    • Send to/Received from: “Miscellaneous”; and

    • Set the diary for 30 days.

B. Holding Cases at the Appeals Council (AC) Level

The Retirement and Survivors Insurance and Supplemental Security Income Branch (RSI branch) will:

  • Hold any appeals involving a material same-sex marriage or non-marital legal relationship issue in With Branch Chief (WIBC) status, with the RSI branch chief as the status employee; and

  • Ensure that each case includes the “WIND” case characteristic found in the “Other” characteristic type in the Appeals Review Processing System.

Any other branches that identify one of these cases also must immediately place the case in WIBC status, with the RSI branch chief as the status employee, and add the “WIND” case characteristic.

VII. Inquiries

A. Public Inquiries

If the claimant or his or her appointed representative inquires as to the status of a hearing request or request for AC review, reply to the extent possible using the information above.

Refer public inquiries about issues involving same-sex marriages not discussed above to the Office of Public Inquiries at the following address:

Social Security Administration
Office of Public Inquiries
Windsor Park Building
6401 Security Blvd.
Baltimore, MD 21235

B. Technical Issues

At the hearing level, direct all program-related and technical questions to the appropriate RO support staff. RO support staff may refer questions or unresolved issues to headquarters contacts in the Office of the Chief Administrative Law Judge.

At the AC level, direct all program-related and technical questions to the Executive Director's office.