TN 15 (09-14)

GN 00210.100 Same-Sex Marriages and Non-marital Legal Relationships - Aged Spouse and Spouse with Child-in-Care

A. Introduction to policy and procedures for same-sex claims and appeals for spouses

Because of the Windsor decision, we are now able to process some spouses’ claims involving same-sex marriages and non-marital legal relationships, including title II benefit claims restricted to “Medicare-only.” These instructions are for processing claims and appeals for aged spouse and spouse with child-in-care benefits.

Do NOT apply these instructions to claims for divorced spouse benefits. Continue to hold claims for divorced spouse benefits involving same-sex marriage or non-marital legal relationships per instructions in GN 00210.005.

Do NOT apply these instructions when a same-sex marriage is not relevant to the claimant’s eligibility. For example, when a number holder (NH) who is involved in a same-sex marriage files for a retirement benefit on his or her own record, process the NH’s claim without applying these instructions.

IMPORTANT: Review all spouse claims and appeals that have been on hold per GN 00210.005 for possible processing under these instructions, including title II benefit claims restricted to “Medicare-only.” Re-contact may be necessary to update and verify information such as domicile the NH’s domicile.

B. Policy for spouse benefits involving same-sex couples

To be entitled to spouse benefits based on a same-sex marriage or non-marital legal relationship, the claimant must meet the entitlement factors as set out in RS 00202.000 and in these instructions.

Use these instructions when an applicant alleges a same-sex marriage or non-marital legal relationship to a NH who is entitled to retirement insurance benefits (RIB) or disability insurance benefits (DIB); and

  • Is age 62 or older; or

  • Has a child in care who is entitled to benefits on the NH’s earnings record (ER).

NOTE: The child need not be receiving benefits on the NH’s ER, but must be entitled to benefits on the ER of the NH. If the child is entitled on another ER, follow RS 00615.772 in deciding whether the child should file on the same ER.

1. Determining the claimant is a spouse for benefits purposes

Step

Action

1

In the field office (FO) and workload support unit (WSU):

Take the claim in the Modernized Claim System (MCS).

Follow established policy on protective filing in GN 00204.010. Do not consider the date of the Windsor decision when determining a protective filing date.

Go to step 2.

2

Consult GN 00210.002, GN 00210.004, and GN 00210.006 to determine if we will recognize the marriage or non-marital legal relationship for the purposes of title II and Medicare benefits.

If you determine that we will recognize the NH’s same-sex marriage or non-marital legal relationship for the purpose of determining entitlement to title II and Medicare benefits, go to GN 00210.100B.2. (in this section) to determine whether the claimant meets the age or child-in-care requirement.

If you determine that we will not recognize the NH’s same-sex marriage or non-marital legal relationship for the purpose of determining entitlement to Title II and Medicare benefits, go to GN 00210.020C for systems instructions to process the case as a denial.

2. Determining the claimant meets the child-in-care or age requirement

Benefits for a spouse with a child-in-care are unreduced. If the spouse is under age 62, you must develop for child-in-care to entitle the claimant to spouse’s benefits. If the spouse is age 62 but not yet full retirement age (FRA), develop for child-in-care to potentially entitle the claimant to unreduced benefits before processing the claim for aged spouse’s benefits which will be reduced for age. There is no need to develop for child-in-care if the claimant is FRA, since benefits are not reduced at FRA.

Step

Action

1

Is the claimant FRA?

If yes, go to GN 00210.100B.3. (in this section) to determine whether the claimant’s marriage (or non-marital legal relationship) meets the duration requirement.

If no, go to step 2.

2

Is the claimant alleging a child-in-care who is under age 16 or has a disability that began before age 22?

If yes, go to step 3.

If no, go to step 7.

3

Is the alleged child-in-care the child of the NH according to RS 00203.001C?

If yes, go to step 4.

If no, go to step 7.

4

Is one of the following statements true?

The claimant is under age 62, and the alleged child-in-care is entitled on the NH’s ER. (The entitlement on the NH’s record may be technical entitlement.); or

The claimant is age 62 but not yet FRA, and the alleged child-in-care is entitled on any ER.

If yes, go to step 6.

If no, go to step 5.

5

If the alleged child-in-care is not entitled to benefits, consider the potential for entitlement to child’s insurance benefits on the NH’s earnings record. If the child meets the requirements for child’s insurance benefits, take the child’s application prior to proceeding with the spouse’s claim. If a disability determination is necessary for a child age 15 ½ or older in order to entitle for child-in-care benefits, follow DI 11020.060 and DI 23505.001.

Go to step 6.

6

Does the child meet the child-in-care criteria, according to policy set out in RS 01310.000?

If yes, go to GN 00210.100B.3. (in this section) to determine whether the claimant’s marriage (or non-marital legal relationship) meets the duration requirement.

If no, go to step 7.

7

Is the claimant aged 62 or older?

If yes, go to GN 00210.100B.3. (in this section) to determine whether the claimant’s marriage (or non-marital legal relationship) meets the duration requirement.

If no, go to GN 00210.020C for systems instructions to process the case as a denial.

3. Determining if the couple meets the duration requirement.

Step

Action

1

Does the claimant and the NH’s current relationship meet the one-year duration-of-marriage requirement as set out in bullet one, RS 00202.001B?

NOTE: Do not consider the date of the Windsor decision in determining the duration of marriage. Rather, rely on the date the couple was married.

If yes, go to GN 00210.020B for systems instructions to process the claim as an approval.

If no, go to step 2.

2

Does the claimant meet the alternative to the 1-year duration-of-marriage requirement because of his or previous or current entitlement (rather than potential entitlement) to a benefit listed in bullet three, RS 00202.001B, in the month before the month of marriage or non-marital legal relationship to the NH?

If yes, go to GN 00210.020B for systems instructions to process the claim as an approval.

If no, go to step 3.

3

Does the claimant meet the alternative to the one-year duration-of-marriage requirement because of his or her potential entitlement (rather than previous or current entitlement) to a benefit listed in bullet three, RS 00202.001B, in the month before the month of marriage or non-marital legal relationship to the NH?

If yes, go to GN 00210.020B for systems instructions to process the claim as an approval.

If no, go to step 4.

4

Does the claimant allege two or more relationships that may, when combined, meet the duration requirement? For example,

  • a relationship that began as a non-marital legal relationship that later converted to a marriage, or

  • more than one non-marital legal relationship or

  • a combination of one or more non-marital legal relationships and marriages to the NH?

If yes, check PR 05800.000 for a legal precedent opinion for the state(s) at issue and the relationships alleged. If no opinion exists, refer the claim for a legal opinion, according to instructions in GN 01010.820.

If no, go to step 5.

5

Does the claimant potentially meet the alternative to the one-year duration-of-marriage requirement as set out in bullet two, RS 00202.001B; that is, does the claimant allege that he or she is the natural parent of the NH’s biological child?

If yes, check PR 05800.000 for a legal precedent opinion for the state at issue. If no opinion exists, refer the claim for a legal opinion, according to instructions in GN 01010.815.

If no, go to GN 00210.020C for systems instructions to process the case as a denial.

C. References

  • GN 00204.010 Protective Filing

  • GN 00210.002 Same-Sex Marriage – Determining Marital Status for Title II and Medicare Benefits

  • GN 00210.003 Same-Sex Marriage – Dates States and U.S. Territories Permitted or Recognized Same-Sex Marriage

  • GN 00210.004 Non-marital Legal Relationships (Such as Civil Unions and Domestic Partnerships)

  • GN 00210.006 Same- Sex Marriages Celebrated in Foreign Jurisdictions

  • GN 00210.020 Processing Instructions for Title II Same-Sex Marriage Claims, Reconsiderations, and Hearings

  • RS 00202.001 Spouse

  • RS 00203.001 Child’s Benefits for Entitlement and Non-Entitlement Provisions

  • RS 01310.000 Child in Care – Table of Contents

  • SM 00380.040 Non-Disability Disallowance, Abatement and Withdrawal Codes – Exhibit

  • SM 00380.050 Disallowance Codes Automatically Generated by MCS


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GN 00210.100 - Same-Sex Marriages and Non-marital Legal Relationships - Benefits for Aged Spouses - 08/11/2014
Batch run: 08/13/2015
Rev:08/13/2015