By Daniel Redman, Gerald A. McIntyre and John R. Unruh

For lesbian, gay, bisexual and transgender (LGBT) elders with same-sex partners, the denial of federal spousal benefits can have devastating financial consequences. The Defense of Marriage Act (DOMA), passed in 1996, currently bars same-sex couples from accessing benefits they would be entitled to receive if they were in opposite-sex marriages. But several legal challenges are progressing through the courts, and many experts believe DOMA could fall within the next few years.

We urge LGBT elders who are otherwise eligible for these benefits to apply for them now. While LGBT people with same-sex partners who apply for these benefits will almost certainly face initial denial because of DOMA, people should apply now to preserve their right to receive maximum retroactive benefits. If elders instead wait to apply after DOMA is overturned by the Supreme Court, they will be eligible only to receive benefits based on that later application date. If DOMA is repealed by Congress—and the Supreme Court does not rule on its constitutionality—then this type of retroactive benefit probably will not be available.

Benefit Details

The benefits affected include the following:

• Social Security spousal benefit. If one spouse in a couple earns significantly more than the other, the lower-earning spouse can receive a benefit equal to half of the higher-earning spouse’s benefit. To qualify, the spouse applying for the benefit must be currently eligible for Social Security; the couple must have been married at least a year (with some exceptions); and the marriage must be recognized in the couple’s state of residence. While the spousal benefit is very important to some married couples, only a small number of couples are eligible because their incomes must vary substantially. In contrast to the survivor benefit (described below) this benefit is available to a couple while both partners are still alive.
• Social Security survivor benefit. This benefit permits a lower-earning surviving spouse, after her partner’s death, to receive her deceased partner’s entire Social Security benefit in place of her own. To qualify, the spouses must have been married for at least nine consecutive months before the partner’s death (with some exceptions) and the couple’s state of residence must have recognized the marriage.
• Veterans’ benefits. Dependency and Indemnity Compensation are benefits paid to the survivors of veterans who die or become disabled in service. Benefits upon death of a veteran are paid to the “next of kin,” who is often the spouse. Plus, most veterans receiving pension or disability compensation benefits can receive an additional modest monthly amount if they are married and claim their spouse as a dependent.

The following example illustrates how same-sex couples can act to protect their rights to retroactive federal benefits. Abby and Beth are same-sex partners, and they are taking steps to ensure access to retroactive benefits if DOMA is overturned by the courts. Abby is 67 and Beth is 68. Together for more than 30 years, as soon as California began granting marriage licenses in 2008, they married. Abby was the primary breadwinner, and Beth worked part-time jobs that earned much less. As a result, Abby receives $2,300 per month in Social Security and Beth receives only $230 per month. If it were not for DOMA, Beth would be able to receive more than $1,000 more each month than she now receives.

Even though they knew they would be denied, Beth applied for the Social Security spousal benefit that would allow her to swap her small benefit for a benefit half the size of Abby’s. With the help of advocates, Beth filed her appeal after she was denied, and given the backlog of cases, it is likely that the appeal process will not be completed for many years. If DOMA is struck down by the courts while the appeal is pending, Beth should be entitled to benefits dating back at least to the date of her application. However, it is important that she file timely appeals at each stage of the process.

Apply Yourself

While we urge people to contact an advocate to assist with this process, some file for benefits on their own. If applying on your own, be sure to bring all necessary documentation (marriage certificates, death certificates, etc.).

Know your rights: some Social Security and Veterans Administration officials may not know you have the right to apply, even if denial is certain. If this happens, ask to speak to a supervisor; you have this right.

Educate yourself about application and appeal deadlines. For example, after being denied Social Security benefits, an applicant has only 60 days to appeal by filing a Request for Reconsideration. Benefits offices strictly enforce these time limits. Also, be sure to document your appeal. Especially at this first level of the appeals process, it is not uncommon for appeals to be misplaced. Keep copies of everything you receive or file.

Given pending court challenges and efforts to repeal DOMA, we are hopeful the law will be abolished within a few years.

If you are an LGBT person who, if DOMA did not exist, would be eligible for Social Security, veterans’ benefits or other federal benefits, we encourage you to contact an advocate now and get your application in the pipeline. Doing so may result in thousands of dollars for your family, and will bring LGBT elders one step closer to achieving the equality they deserve.

Daniel Redman is an attorney in the Elder Law Project of the National Center for Lesbian Rights in San Francisco. Gerald A. McIntyre is directing attorney at the National Senior Citizens Law Center in Washington, D.C. John R. Unruh is a staff attorney at Swords to Plowshares in San Francisco.

Editor’s Note: This article appears in the November/December, 2011, issue of Aging Today, ASA’s bi-monthly newspaper covering issues in aging research, practice and policy nationwide. ASA members receive Aging Today as a member benefit; non-members may purchase subscriptions at our online store.