Late September/Early October Newsletter, Part 1, Social Security Benefits, Part 2 Disability and Medicare Benefits, and Part 3, Practical Considerations for the LGBT Community, Coming Next Month

Social Security Benefits are Now Available to LGBT Couples Nationwide![1]

After the United States Supreme Court decision in United States v. Windsor on June 26, 2013, same sex married couples became eligible for most of the nearly 1,138 rights that were available to heterosexual married couples.  See Memorandum to the President, June 20, 2014, from Eric Holder on the implementation of the United States v. Windsor, found at: .

However, if you lived in a “non-recognition state, like Texas, where same sex marriage was not legal, you were not eligible for Social Security benefits.

On June 26, 2015, the Supreme Court decided Obergefell v. Hodges.  The Court held that same-sex couples have a constitutional right to marry under the Due Process and Equal Protection clauses guaranteed to all Americans in the First Amendment to the United States Constitution.  The Court also held that all states must recognize lawfully performed marriages between same sex couples whether performed here or abroad.

The Court’s opinion left unanswered the question of whether it would apply retroactively to same sex couples who were lawfully married.

Finally, on August 20, 2015, arising out of litigation filed by Lambda Legal in Chicago, the Department of Justice announced that the Social Security Administration (SSA) would apply the Court’s decision retroactively to Social Security benefits for same sex couples living in non-recognition states. More specifically, the DOJ stated the Social Security Administration would process pending spousal benefits claims (and those in litigation) for same sex couples who live in non-recognition states.

If you are a spouse, a divorced spouse, or a surviving spouse of a same sex marriage or a non-marital legal same sex relationship,[2] the SSA suggests that you apply for social security benefits immediately.  LGBT legal practitioners agree.  The SSA also considers same sex marriages for Supplemental Security Income (SSI) when determining SSI eligibility and payment amount.  If you are receiving SSI benefits, you should report changes in your marital status and address to the SSA as soon as possible.

Social Security Benefit Primer:

Social Security will affect every American during his or her lifetime.  By 2030, one out of every four people living in the United States will be age 60 or older.  Right now, there are approximately 371,205 LGBT people over the age of 45 in Texas.

Social Security protects older Americans, disabled workers and families when a spouse or a parent dies.  This year approximately 167 million people have worked and paid social security taxes.  About 59 million people have received monthly social security benefits.

Social security replaces about 40% of an average wage earner’s income during retirement.  Financial advisors estimate that retirees will need about 70% of their pre-retirement income to live comfortably during retirement.

Social security consists of three benefits types:  1) retirement benefits; 2) disability benefits; and 3) survivor’s insurance programs.  The following people are eligible to receive social security benefits:  1) retirees; 2) the disabled; 3) a spouse or a child of someone receiving social security; or 4) a dependent parent of a worker who passed away.

Social security benefits are based on how much you earned while you worked. The more money you earned, the higher your benefit amounts.  If you worked some years and not others, your benefit amounts may be lower.

You may be eligible for benefits at any age.  Social security actually pays more in benefits to children than adults.

Retirement Benefits:

You can start receiving retirement benefits at age 62.  However, if you wait until “full retirement age,” your benefits will be higher.  Your full retirement age depends on the year you were born.  If you were born between 1943 and 1954, your full retirement age is 66.  If you were born in 1960, or later, your full retirement age is 67.   If you retire after your full retirement age, the SSA will increase your benefits based on the year you were born and will increase the benefit amount each moth until you start taking your benefits, or reach age 70, whichever comes first.  If you take benefits prior to your full retirement age, your benefits will be reduced.

Regardless of your full retirement age, you should apply for Medicare benefits at least three months prior to your 65th birthday or your Medicare medical insurance and prescription drug coverage may cost you more money.

Retirement benefits for widows, widowers, and children:

When you die, your family may be eligible for benefits based on your earnings.  Family members who are eligible for benefits after you die include: a widow or widower who is:

  • 60 or older; or
  • 50 or older and disabled; or
  • Any age if he or she is caring for your child who is younger than 16 or disabled and entitled to Social Security benefits on your record.

Children can also receive benefits, if they’re unmarried and:

  • younger than 18 years old; or
  • between 18 and 19 years old, but in an elementary or secondary school as full-time students; or
  • age 18 or older and severely disabled (the disability must have started before age 22).

In addition, your parents can receive benefits based on your earnings if they were dependent on you for at least half of their support.

Death Benefit: 

Your spouse or minor children may be eligible for a one-time payment of $255.00 dollars after your death if you earned enough during your life time.


To qualify for retirement benefits, a divorced spouse must: 1) have been married to you for at least 10 years; 2) been divorced at least two years; 3) be at least 62 years old; 4) be unmarried; and not be eligible for an equal or higher benefit based on his or her own work or someone else’s work.

Divorced and have a surviving ex-spouse:

If you’re divorced, your ex-spouse may be eligible for survivor’s benefits based on your earnings after you die: Your spouse must: 1) be at least age 60 years old (or 50 if disabled) and have been married to you for at least 10 years; or 2) be any age if caring for a child who is eligible for benefits based on your earnings; and not be eligible for an equal or higher benefit based on your ex-spouse’s own work; and not be currently married, unless the remarriage occurred after age 60 or after age 50 if disabled.

What you Documents You Need to Apply for Social Security Benefits:

To apply for social security benefits you will need the following original documents or certified copies of them: 1) your Social Security card (or a record of your number); 2) your birth certificate; 3) if you are applying for benefits for your children, your children’s birth certificates and social security numbers; 4) proof of U.S. citizenship or lawful immigration status if you or a child were not born in the United States; 5) your spouse’s birth certificate and social security number if your spouse is applying for benefits based on your earnings; 5) if you are signing up on a spouse’s earnings or if your spouse is signing up on your earnings, your marriage certificate; 6)  your military discharge papers if you had military service; and 7) recent W-2 forms, or your tax return, if you’re self-employed.

If you have questions about how a same-sex marriage or non-marital legal relationship may affect your claim, please call 1-800-772-1213 (TTY 1-800-325-0778) or go to to contact your local Social Security office.  You may also contact the Regional Communications Director for Arkansas, Louisiana, New Mexico, Oklahoma and Texas: Sarah Schultz-Lackey; Regional Communications Director; 1301 Young Street, Room 240; Dallas, TX 75202-5433; Phone: 214-767-3407; Fax: 214-767-8986; Email:

For more information on social security benefits, you can go to the Social Security Administration’s retirement planner at; apply for benefits at, obtain benefit estimates based on your Social security earnings record at; and obtain more detailed benefit calculations at

For the latest up to date information on the rights affecting same sex couples after Obergefell v. Hodges, please visit

[1] The author borrowed heavily from SSA Publication No.: 05-10024. Please review same for additional information.  The author gives special thanks for the SSA for allowing her to republish portions of this publication liberally here.


[2] Texas does not have civil unions or registered domestic partnerships like some states including Vermont and California.  However, Texas is one of approximately 8 states that allow common law marriage.  Texas law on common law marriage for same sex couples is unsettled at this time.  Therefore, this article will only address where applicable, lawfully married same sex couples who were lawfully married prior to the Obergefell decision or who were lawfully married in Texas after the Obergefell decision on June 26, 2015.

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