Barbara J. Katzenberg, Attorney at Law
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Same-sex spouses only eligible for SSA benefits in nuptial states

While nontraditional families across America continue the battle for equality regarding laws relating to same-sex marriage and divorce, the wheels of change are slowly turning. Since part of the Defense of Marriage Act was declared unconstitutional by the United States Supreme Court on June 26, 2013, same-sex spouses have been granted a host of benefits relating to marriage and divorce, even for couples who reside in states where same-sex marriages are not recognized. However, same-sex couples who got married in Massachusetts may want to be aware of exclusions where state laws rule.

The Social Security Act and the Department of Veterans Affairs remain under state laws. Couples who were legally married in a state such as Massachusetts, where such unions are recognized, and who later relocated to a state where it is not, will not be eligible for Social Security benefits. The laws of the state of residence will be valid in any marriage-related claims for Social Security benefits.

Same-sex spouses in the 19 states where non-traditional marriages, domestic partnerships and civil unions are allowed, will be granted SSA benefits, along with the four states that allow non-marital legal relationships. However, if the proposed Social Security and Marriage Equality Act is passed by Congress, there will be drastic changes. In the meantime, authorities are advised to avoid using gender-related terms when dealing with same-sex spouses.

While awaiting the approval of the Act, same-sex spouses and parties of civil unions or domestic partnerships may apply for SSA benefits. Couples who are considering same-sex divorce or marriage, and feel intimidated by the laws relating to nontraditional family law and Social Security, may want to obtain the advice of professionals to guide them through the required procedures. While their remains many stumbling blocks on the road to equality, the Supreme Court has affirmed that all loving and committed couples that marry deserve equal legal respect and treatment.

Source: The Wall Street Journal, "Where Federal Law Exempts Same-Sex Couples", Jennifer Waters, July 13, 2014

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