By Melissa Myers and Michael J. Tucker, Feb. 26, 2015.

Melissa Myers: I gather that life for newly-married same-sex couples can still be pretty complicated with the overlay of some laws that haven’t quite caught up to marriage equality yet.

Michael J. Tucker: You mean Social Security?

Myers: Someone got in touch with Echo saying they were married out of state in 2013, but that his husband died before their marriage became legal in Arizona.

Tucker: That situation is heartbreaking – even though since September 2013, most federal agencies have been recognizing same-sex marriages, no matter where they live, the Social Security Administration is required by federal statute to determine the validity of same-sex marriages based on the state of residence of the couple at the time the wage-earning spouse applied for benefits.

Myers: That’s so confusing.

Tucker: Also, Social Security follows a rule that the survivor benefits will be determined based on the state where the wage earner resided at the time of his or her death. So, in a case like this, Social Security isn’t allowed to treat this couple as married.

Myers: And, isn’t there a duration requirement?

Tucker: Yes. Couples need to be married for at least nine months at the time the wage earner died.

Myers: So, this is a situation that will apply to a very small number of couples, but nevertheless can produce a terrible result.

Tucker: Legally, Social Security isn’t allowed to take into account that the couple had been together for many years before legally marrying.

Myers: It’s important to recognize also that Social Security survivor benefits will not be an important financial factor in most same-sex couples’ marriages.

Tucker: Right. It’s only going to be critical in cases where one spouse had a long earnings record and the other spouse had no employment for tax purposes.

Myers: These days it’s more common that each spouse will have accrued his or her own earnings record to support his or her own Social Security retirement benefit.

Tucker: Most Americans will qualify for Social Security benefits on their own without relying on survivor benefits based on the earnings record of a spouse who predeceased them.

Myers: Many couples are focused on getting the “extra” Social Security benefits that they perceive they are entitled to by virtue of being married.

Tucker: I’ve noticed that, too. It surprises them that being married won’t be likely to get them any additional Social Security benefit.

Myers: What should surviving spouses in Arizona do to claim any available Social Security survivor benefit if their spouse died before Oct. 17, 2014?

Tucker: The latest conventional wisdom in this area is that all such couples should apply for the Social Security survivor benefit, and they should appeal any denial of their claim.

Myers: That way, their claims are already pending if the law happens to change, either because same-sex marriage equality becomes retroactive as matter of constitutional law across all 50 states or because Congress changes the statute governing how Social Security Administration determines who is married.

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