Barbara J. Katzenberg, Attorney at Law
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Social Security benefits for same-sex divorce after 10 years

Just over a year after the U.S. Supreme Court announced the changes to the Defense of Marriage Act (DOMA), federal benefits of same-sex couples were recently expanded. However, without extensive expansion of legislation, same-sex spouses will remain in an indeterminate state in matters relating to Social Security benefits. Gay couples in Massachusetts may want to acquire knowledge of the recent changes in Social Security rules and regulations pertaining to nontraditional families and same-sex divorce benefits.

According to federal statutes, Social Security bases its decision on benefits for same sex-spouses on the state where they reside. Only those who live in states where same same-sex marriages are recognized would be eligible for Social Security benefits, even if they were married in another state. As with traditional marriages, benefits for widows and widowers will only apply to spouses after nine months of marriage, and spousal benefits after one year of marriage.

After a marriage of 10 years, same-sex spouses who divorce may be eligible for benefits. The first U.S. state to recognize same-sex marriages back in 2004 was Massachusetts. This means that same-sex couples who got married in Massachusetts in 2004, and reside in a state where their marriage is recognized, may now be eligible for Social Security divorce benefits. Only when same-sex marriages are recognized by all states will nontraditional families truly benefit from Social Security.

As same-sex spouses study the laws related to Social Security and how they are applied to nontraditional families, they may realize that post-marriage claims are more attractive than claims made before marriage. If those claims were made within the past year, they could be withdrawn. Although any benefits already paid will have to be repaid, new claims may be filed as a married person. Couples who find Social Security regulations pertaining to same-sex divorce and spousal benefits too complex may find comfort in knowing that there are advisors who aim to assist same-sex couples in navigating their way around the pitfalls of the Massachusetts same-sex laws.

Source: time.com, "Social Security Keeps Some Same-Sex Claims on Hold", Philip Moeller, June 25, 2014

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