I-5-1-19.Processing Appeals Involving the Marital Status of a Same-Sex Couple

Last Update: 9/23/16 (Transmittal I-5-119B)

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

ISSUED: February 12, 2014

REVISED: July 29, 2014

REVISED: September 23, 2016

I. Purpose

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

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

II. Background

Because of the Supreme Court decisions in U.S. v. Windsor and Obergefell v. Hodges, same-sex marriages are permitted and recognized in all States and U.S. Territories; and the Social Security Administration (SSA) is no longer prohibited from recognizing same-sex marriages for the purpose of determining entitlement to or eligibility for benefits or payment amount.

SSA continues to consult with the Department of Justice to implement the Obergefell 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 – For our purpose, 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 Program Operations Manual System (POMS) GN 00305.001B.2., every person has a domicile and can only have one at a time.

NOTE:

When a claimant is domiciled in a foreign country, the Social Security Act requires us to apply the law that courts in the District of Columbia would use to determine marital status.

IV. Referrals for a Legal Opinion

In some situations, POMS processing instructions require that adjudicators request a legal opinion from the Regional Chief Counsel (RCC). In these cases, the opinion generally will be included with documentation the field office (FO) or processing center (PC) 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:

  • Check POMS PR, Title II Regional Chief Counsel Precedents and POMS PS, Title XVI Regional Chief Counsel Precedents, as appropriate, for a legal precedent opinion. See, for example, PR 058: MARITAL RELATIONSHIP -- Same-Sex Relationships. Since legal precedent opinions published in POMS PR and PS are available to the public, personally identifiable information is removed or altered. For more information, see POMS GN 01010.810C.

  • Refer the case to the appropriate ODAR Regional Office (RO) if there is no relevant opinion in POMS PR or PS, or if an opinion no longer seems applicable (e.g., due to changes in State law or modifications by a court decision). The RO will refer the claim to the RCC for a legal opinion, consistent with the guidance in POMS GN 01010.815 and GN 01010.820. See also Hearings, Appeals and Litigation Law (HALLEX) Manual I-2-2-40 B.

There 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 legal opinion. However, HO staff may request the opinion from the RCC, through the ODAR RO.

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

V. Case Processing

SSA has issued instructions for processing title II cases identified in V.A.1., V.B.1., V.C.1., V.D.1., and V.E.1. below, and title XVI cases identified in V.F.1. below.

NOTE:

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

A. Aged Spouse, Spouse With Child-in-Care, and Surviving Spouse Benefits

1. Claim Types for Aged Spouse, Spouse With Child-in-Care, and Surviving Spouse Benefits

Instructions are now available in POMS GN 00210.100 for processing spouse claims involving same-sex marriages or non-marital legal relationships. These instructions address claims for benefits as an aged spouse (including aged divorced spouse and aged independently entitled divorced spouse), a spouse with a child in his or her care (child-in-care) or a surviving spouse (including a surviving divorced spouse and a disabled surviving spouse).

  • Aged spouse claims can be identified by the following beneficiary identification codes (BIC): B, B1, B3, B4, B6, B8, B9, BA, BD, BG, BH, BJ, BN, BP, BQ, BR, and BT.

  • Spouse with child-in-care claims can be identified by the following BICs: B2, B5, B7, BK, BL, BW, and BY.

  • Surviving spouse claims can be identified by the following BICs: D6, D7, DC, DM, DS, DV, DW, DX, DY, DZ, W6, W7, W8, WC, WJ, WR, and WT.

  • Widow(er)'s claims can be identified by the following BICs: D, D1, D2, D3, D8, DD, DG, DH, DJ, and DK.

  • Disabled widow(er)'s claims can be identified by the following BICs: W, W1, W2, W3, W4, W5, W9, WB, WF, and WG.

For more information on BICs, including those for Medicare Qualified Government Employment (MQGE) only claims, see POMS SM 00550.010.

2. Processing Considerations

ODAR staff will process aged spouse claims and spouse with child-in-care 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 and Medicare benefits:

B. Mother's or Father's Benefits

1. Claim Types for Mother's or Father's Benefits

Instructions are now available in POMS GN 00210.420 for processing claims for mother's or father's benefits when the surviving spouse (or surviving divorced spouse) of a same-sex marriage or non-marital legal relationship has an entitled child of the deceased NH in his or her care. The mother's and father's claim types can be identified by the following BICs:

  • For mother's claims, E, E2, E7, E8, or EA.

  • For father's claims, E4, E6, EF, EG, or EH.

  • For surviving divorced mother's claims, E1, E3, EB, EC, or ED.

  • For surviving divorced father's claims, E5, E9, EJ, EK, or EM.

For more information on BICs, see POMS SM 00550.010.

2. Processing Considerations

ODAR staff will process mother's and father's 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 and Medicare benefits:

NOTE:

Regarding 20 CFR 404.339(b), no application is required if the claimant was entitled to wife's or husband's benefits for the month before the NH died, per RS 00208.001C, third bullet. Please also note that 20 CFR 404.339(b) does not mention husband's benefits, but the section applies equally to husband's and wife's benefits.

C. Child Benefits

1. Claim Types for Child Benefits

Instructions are now available in POMS for processing certain child claims.

  • If the child seeking benefits is the natural or adoptive child of the NH, see POMS GN 00306.001C.1.d., 20 CFR 404.350, and 20 CFR 404.355 (natural child) or 20 CFR 404.356 (legally adopted child).

  • If the child is the stepchild of the NH based on a same-sex marriage or non-marital legal relationship, see POMS GN 00210.505.

  • If the child is not the biological child, adoptive child, or alleged stepchild of the NH, and alleges a parent-child relationship based on a same-sex relationship, refer the claim to the RCC through the ODAR RO if there is no pertinent opinion in POMS PR or an opinion no longer seems applicable (e.g., due to changes in State law or modifications by a court decision).

Child claims can be identified by BICs C1 through C9 and CA through CR. Although the BIC does not identify the child's relationship to the NH, the Child Relationship (CHLD REL) data line on the Master Beneficiary Record displays the child's relationship to the NH (e.g., 2 TYPE-Stepchild). For more information, see SM 00510.220.

2. Processing Considerations for Benefits As a Stepchild

ODAR staff will process stepchild claims in which entitlement is dependent on the NH's same-sex marriage or non-marital legal relationship to the child's parent or adoptive parent by following normal case processing procedures and complying with the guidance below.

For purposes of entitlement to title II benefits as a stepchild of the NH:

D. Lump-sum Death Payment

1. Claim Types for Lump-sum Death Payment

Instructions are available in POMS GN 00210.600 for processing 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

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.

In processing LSDP claims:

  • We will recognize same-sex marriages or non-marital legal relationships using the policy and applicable procedures set out in GN 00210.600, as well as GN 00210.002, GN 00210.003, GN 00210.004, and GN 00210.006.

  • The claimant must meet all other factors of entitlement for the LSDP as described in 20 CFR 404.391, which applies to a widow(er) who was living in the same household as the NH (as defined in 20 CFR 404.347), or 20 CFR 404.392, which applies when there is no widow(er) who was living in the same household as the NH.

E. Supplemental Security Income (SSI)

1. Introduction

POMS GN 00210.800 and GN 00210.850 contain instructions for processing SSI claims, appeals, and post-eligibility actions that require determining a same-sex couple's marital status for SSI purposes. (See also SI 00501.150 on determining whether a marital relationship exists and SI 00501.152 on determining whether two individuals are holding themselves out as a married couple.)

A same-sex marriage may affect SSI eligibility and payment amounts when an SSI claimant is a member of the same household as his or her same-sex spouse or when an SSI child claimant and his or her parent are members of the same household as the parent's same-sex spouse.

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

Consider the same-sex couple as married if we recognize the marital relationship for SSI purposes using the policies and applicable procedures set out in GN 00210.800. Do not use the instructions in GN 00210.800 to determine marital status for SSI purposes in the situations listed in GN 00210.800B. (See also GN 00210.850, SI 00501.150, and SI 00501.152.)

3. Processing Considerations When the Claimant Is Not a Child

For SSI claims and appeals, the claimant must meet all SSI eligibility factors as described in 20 CFR 416.202. For more information regarding 20 CFR 416.202(e), see 20 CFR 416.214.

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

4. Processing Considerations When the Claimant Is a Child

For SSI claims and appeals, the claimant must meet all SSI eligibility factors as described in 20 CFR 416.202. For more information regarding 20 CFR 416.202(e), see 20 CFR 416.214. For an explanation of who is considered a child and the effects of being considered a child, see 20 CFR 416.1856 and 416.1851 respectively.

POMS GN 00210.850 contains instructions for processing SSI claims, appeals, and post-eligibility actions when the SSI claimant is a child who lives either with parents of the same sex or with his or her parent and the parent's same-sex spouse (stepparent). (Note that an eligible child may have more than two parents in his or her household or only one parent in his or her household.)

  • A child applying for or receiving SSI who lives either with two parents of the same sex or with his or her parent and the parent's same-sex spouse (stepparent) is presumed to share their income and resources.

  • When considering a parent-child relationship for SSI deeming purposes, SSA generally accepts allegations that an individual is the child's parent or stepparent, unless there is information to the contrary. See, for example, GN 00210.850E.1. For more information on determining parent-child relationships for SSI purposes, see SI 00501.015.

  • When the child lives with two parents of the same sex, or one parent and the parent's same-sex spouse, we will consider the income, resources, and ineligible children of both for deeming purposes.

  • When the child lives with one parent and the parent's alleged same-sex spouse, we will consider the couple married if we may recognize the marital relationship for SSI purposes using the policies and applicable procedures set out in GN 00210.800. We will not use the instructions in GN 00210.800 to determine marital status for SSI purposes in the situations listed in GN 00210.800B.

VI. Overpayments

For instructions for processing Title II claims and post-entitlement actions in cases where recognition of a same-sex marriage results in an overpayment, see EM-16XXX.

For instructions for processing SSI post-eligibility actions that result in an overpayment following recognition of a same-sex marriage, see EM-16013 REV 2.

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