Until recently, federal law did not recognize same-sex marriages for purposes of Social Security benefits that depend on marriage. Then the Supreme Court of the United States invalidated part of DOMA (“Defense Of Marriage Act”) on June 26, 2013, in a case called United States v. Windsor. Full rights (and some liabilities) under Social Security became available to same-sex couples who married and lived in states that recognize same-sex marriage.
But what about states that do not allow same-sex marriages to be performed, like Ohio?
It was not clear how the Windsor case would affect people in Ohio, where same-sex couples cannot marry, and where even valid same-sex marriages performed in other states are not recognized. Most Social Security benefits, in determining whether a marriage is valid, look to the law in the state of residence. So it appeared that Windsor would not affect Social Security benefits for Ohio residents, even those same-sex couples who validly married in another state and moved to Ohio.
However, a federal judge in Ohio has found that Ohio’s law that prohibits recognition in Ohio of valid out-of-state same-sex marriages cannot be enforced, because Ohio recognizes other types of out-of-state marriages that could not be validly performed in Ohio (such as first-cousin or minors marriages). In a case called Obergefell v. Kasich, No. 1:13-cv-501 (S.D. Ohio, July 22, 2013), the judge issued a temporary restraining order against Ohio’s law. If this ruling becomes final, it will affect Social Security benefits, and other federal and perhaps state benefits, for couples who have valid same-sex marriages from another state but now reside in Ohio.
If the Obergefell ruling becomes final, Social Security benefits may be affected in several ways for Ohio residents who have valid out-of-state same-sex marriages. On the plus side, one spouse may collect Social Security benefits on the earnings record of the other in circumstances like death, disability, or retirement. Also on the plus side, children may collect Social Security benefits on the earnings record of the additional spouse in certain circumstances. On the other hand, marriage is a disadvantage sometimes under the SSI (Supplemental Security Income) disability and retirement programs, where married couples receive less money total than they would as unmarried individuals, and their income and resources are considered together.
Families with a same-sex couple who married validly in another state, but who reside in Ohio, should be alert to these developments.