TN 26 (02-16)

GN 00210.800 Supplemental Security Income (SSI) Same-Sex Marriages, Same-Sex Couples, and SSI Deeming from a Same-Sex Ineligible Spouse

CITATIONS: Social Security Act 1614(b) and 1614(d)20 CFR 416.1801 through 416.1835

Following the 2013 U.S. v. Windsor Supreme Court decision, we began recognizing some same-sex marriages for Supplemental Security Income (SSI) purposes.

On June 26, 2015, the Supreme Court found in Obergefell v. Hodges that all states must permit same-sex marriage and recognize valid same-sex marriages from other states.

Because of the Obergefell decision, we recognize same-sex couples as married in all states for purposes of determining eligibility or payment amount for SSI, including some same-sex couples we earlier determined were unmarried.

NOTE: For cases involving Title XVI overpayments, please refer to EM–16013 REV for detailed instructions.

A. Policy for recognition of same-sex marriages for SSI purposes

We recognize marriages between individuals of the same sex for SSI purposes in all states.

As set out in this subsection, we will also consider certain individuals in same-sex relationships other than ceremonial marriages to be holding out as married, in keeping with existing SSI policy for opposite-sex marriages.

Same-sex individuals are married for SSI purposes if they are:

  • legally married according to the laws of the state of their permanent home (Note: all states must permit and recognize same-sex marriages);

  • entitled to Title II benefits as a same-sex couple; or

  • living together in the same household and holding out to the community as married.

B. When you should not use these instructions

Do not use the instructions in GN 00210.800 if:

  • the claimant alleges not being married, unless we have evidence to the contrary;

  • the claimant’s marriage involves a transgender individual, and GN 00305.005B.5. instructs you to process the case as an opposite-sex marriage; or

  • the claimant does not live in the same household with his or her spouse. In that situation, process the claim, appeal, or post-eligibility action for an unmarried individual.

C. Selecting the month to apply a finding of a same-sex marriage for SSI initial claims, appeals, and post-eligibility purposes

Selecting the month to apply a finding of a same-sex marriage for SSI deeming purposes, or to apply the SSI eligible couple’s payment rate and resource limit to a member of a same-sex couple, depends on whether the determination involves:

  • a new or pending initial claim, including a pending appeal of a determination or decision on an initial claim; or

  • a post-eligibility (PE) action.

When selecting the month to apply a finding of a same-sex marriage for SSI deeming purposes, or to apply the SSI eligible couple’s payment rate and resource limit to a member of a same-sex couple, do not consider:

  • the date of the Windsor Supreme Court decision, June 26, 2013;

  • the date of the Obergefell Supreme Court decision, June 26, 2015; or

  • the date that the laws of the state where the couple make or made their permanent home first recognized same-sex marriages performed in that state or in any other jurisdiction.

1. Selecting the month to apply a finding of a same-sex marriage for a new or pending initial SSI claim, including a pending appeal

  1. First, select the earliest of:

    • the month following the month the couple celebrated the marriage;

    • the month following the month SSA made a determination that they were entitled to Title II benefits as a same-sex couple; or

    • the month following the month the individuals began holding out to the community as married.

  2. Next, determine the claimant’s month of eligibility for SSI payments based on the date of application as specified in GN 00204.007.

Choose the later of (a) or (b) as the month to apply a finding of a same-sex marriage that was established before the final adjudication of an initial claim or appeal.

2. Selecting the month to apply a finding of a same-sex marriage for a PE SSI action

  1. First, select the earliest of:

    • the month following the month the couple celebrated the marriage;

    • the month following the month SSA made a determination that the individuals were entitled to Title II benefits as a same-sex couple; or

    • the month following the month the individuals began holding out to the community as married.

  2. Next, determine the earliest month subject to revision according to the instructions in SI 04070.000 (Administrative Finality – SSI) and SI 02305.034 (Period of Review – RZs and LIs).

Choose the later of (a) or (b) as the month to apply a finding of a same-sex marriage that was established after the final adjudication of a claim. If this action would result in an overpayment for one or more past months, please refer to EM–16013 REV for detailed instructions.

D. Initial processing steps common to SSI claims and post-eligibility actions involving same-sex couples

Follow these initial steps when processing either an SSI claim or a PE action involving a same-sex couple.

Step

Action

1

For the period under review, does the claimant allege living with, or having lived with, someone with whom he or she celebrated a same-sex marriage?

If yes, go to step 2.

If no, go to step 4.

2

Did the claimant celebrate the same-sex marriage in a foreign jurisdiction; that is, somewhere other than in:

  • the 50 United States;

  • the District of Columbia; or

  • the Northern Mariana Islands?

If yes, go to GN 00210.006 to determine if the claimant is married for SSI purposes, and proceed to step 3.

If no, accept the claimant’s allegation that he or she celebrated a marriage, and go to step 7.

3

After applying the instructions in GN 00210.006, do we recognize the same-sex marriage celebrated in a foreign jurisdiction?

If yes, go to step 7.

If no, go to step 4.

4

For the period under review, does the claimant allege living with, or having lived with, an individual of the same sex, and has SSA determined that they were entitled to Title II benefits as a same-sex couple?

If yes, go to step 7.

If no, go to step 5.

5

For the period under review, does the claimant allege living with, or having lived with, an individual of the same sex, and do you determine that the couple are or were holding out to the community as married, according to instructions in SI 00501.152?

If yes, go to step 7.

If no, go to step 6.

6

For the period under review, the claimant is not or was not in a same-sex marriage for purposes of deeming of income or resources or applying the couple’s payment rate and resource limit to a member of a same-sex couple.

  • Complete the remaining development, including referral to DDS for a medical decision, as appropriate, for an initial claim; or

  • Approve or deny the initial claim, or process the redetermination or other post-eligibility event.

7

For the period under review, the claimant is or was in a same-sex marriage for purposes of deeming of income or resources or applying the couple’s payment rate and couple’s resource limit to a member of a same-sex couple.

Go to GN 00210.800E in this section to complete an initial claim; or

Go to GN 00210.800F in this section to complete a PE action.

E. Final processing steps for SSI claims and appeals involving same-sex couples

As directed in GN 00210.800D in this section, follow these steps to complete the processing of an SSI initial claim or an appeal of a decision on an initial claim when you have determined that the claimant is a member of a same-sex couple.

See GN 00210.800F in this section for final processing steps for SSI PE actions.

Step

Action

1

Take the initial claim application in MSSICS (H80 status, edit condition: “Sex for both members of a couple cannot be identical.”)

  • Add the same-sex spouse.

  • Document the marriage on the AMAR screen.

  • Enter the code that applies to the marriage status alleged at the time of the application as the first four positions of the unit on the development worksheet (DW01):

Marriage - Code 626M

Holding Out - Code 626H

Other - Code 626O (Use this code for “entitled to Title II benefits as a same-sex couple.”)

IMPORTANT: Retain this unit code for the type of same-sex marriage alleged, regardless of the determination or changes made in the adjudicative level of the case.

  • Complete additional MSSICS screens, as needed, to document all factors of eligibility for the application period.

Go to step 2.

2

Determine which months in the application period the claimant was in a same-sex marriage for purposes of deeming of income or resources or applying the couple’s payment rate or resource limit to a member of a same-sex couple, according to the requirements in GN 00210.800C.1. in this section.

Go to step 3.

3

Based on the claimant’s allegations regarding the couple’s resources and income, perform a preliminary assessment of the claimant’s potential eligibility for SSI. Manually perform an eComputation for each month of potential eligibility, and save the eComputations in the electronic folder.

Is the claimant technically ineligible for SSI for every month from the date of application, based on his or her allegations (e.g., excess deemed income, excess deemed resources)?

If yes,

  • Obtain a mandatory Technical Expert (TE) or Management Official case review, according to GN 00210.800G in this section.

  • Use the Force Due (M02) process in MSOM BUSSR 002.006 to effectuate the technical claim denial ($.00 payment).

  • Add this exact language to the SSR as a remark: “M02 REQD-SAME SEX CASE MM/DD/YYYY (date of input),” as instructed in MSOM MSSICS 023.003.

  • Send a manual Denial Notice (SSA-L8030) NL 00802.025 using the Document Processing System (DPS). Store the notice on the Online Retrieval System (ORS).

If no, go to step 4.

4

Does the claim require a medical decision?

If yes, see SI 00603.002 to determine whether to follow deferred or simultaneous developmental guidelines. Because all Title XVI same-sex marriage cases are systems limitation cases, retain the H80 status. Refer the claim to the Disability Determination Services (DDS). Go to step 5.

If no, go to step 6.

5

Is the medical decision favorable?

If yes, go to step 6.

If no,

  • Use the Force Due (M02) process in MSOM BUSSR 002.006 to effectuate the denial ($.00 payment); and

  • Add this exact language to the SSR as a remark: “M02 REQD-SAME SEX CASE MM/DD/YYYY (date of input),” as instructed in MSOM MSSICS 023.003.

The DDS sends the medical denial notice.

6

Conduct a pre-effectuation review contact (PERC), as required according to SI 00603.031.

  • Update the eComputations from step 3.

  • Obtain a mandatory TE or Management Official case review, according to GN 00210.800G in this section.

  • Use the Force Due (M02) process to control the case and pay the individual according to the results of the eComputations, according to SM 01701.001 and MSOM BUSSR 002.006.

  • Add this exact language to the SSR as a remark: “M02 REQD-SAME SEX CASE MM/DD/YYYY (date of input),” as instructed in MSOM MSSICS 023.003.

  • Send a manual Award Notice (SSA-L8025) NL 00802.015, using DPS. Store the notice on the Online Retrieval System (ORS).

NOTE: Earlier instructions called for posting the SSR remark “M02 REQD-WINDSOR CASE MM/DD/YYYY (date of input).” These cases, whether identified as “WINDSOR” or “SAME SEX” in the SSR remarks, will appear on the Force Pay Listing website, which updates quarterly. Monitor these cases closely; the system will not automatically terminate the claimant's eligibility, should a relevant period of ineligibility occur.

F. Final processing steps for SSI PE actions involving same-sex couples

As directed in GN 00210.800D in this section, follow these steps to complete the processing of an SSI PE action when you have determined that the recipient is or was a member of a same-sex couple for any month in the review period. As directed in GN 00210.800D in this section, follow these steps to complete the processing of an SSI PE action when you have determined that the recipient is or was a member of a same-sex couple for any month in the review period. If this action would result in an overpayment for one or more past months, please refer to EM–16013 REV for detailed instructions.

See GN 00210.800E in this section for final processing steps for SSI initial claims and appeals.

Step

Action

1

For the period under review, determine the earliest month we will recognize the claimant’s same-sex marriage for SSI deeming purposes or for applying the SSI eligible couple’s payment rate and resource limit to a member of a same-sex couple according to GN 00210.800C.2. in this section.

Go to step 2.

2

  • Enter the code that applies to the marriage status alleged at the time of the PE review as the first four positions of the unit on the development worksheet (DW01):

Marriage - Code 626M

Holding Out – Code 626H

Other - Code 626O (Use this code for “entitled to Title II benefits as a same-sex couple.”)

IMPORTANT: Retain this unit code for the type of same-sex marriage alleged, regardless of the determination or changes made in the adjudicative level of the case.

  • Record the marriage on the AMAR screen.

  • Update additional MSSICS screens, as needed, to document the redetermination or other PE event.

Go to step 3.

3

  • Manually perform an eComputation for each month in the PE review period, and save the eComputations in the electronic folder.

  • Obtain a mandatory case review by a TE or Management Official, according to instructions in GN 00210.800G in this section.

  • Use the Force Due (M02) process to control the case and pay the individual according to the results of the eComputations. For more information, refer to the instructions on Force Due in SM 01701.001 and MSOM BUSSR 002.006. If this action would result in an overpayment for one or more past months, please refer to EM–16013 REV for detailed instructions.

  • Add a remark to the SSR exactly as follows: “M02 REQD-SAME SEX CASE MM/DD/YYYY (date of input),” as instructed in MSOM MSSICS 023.003, so that the RMKS FOUND column on the FO Case Listing will contain a “Yes.”

  • Send a PE notice (SSA-8151 or SSA-8155) regarding payment changes and due process options, using DPS. Store the notice on the Online Retrieval System (ORS).

NOTE: Earlier instructions called for posting the SSR remark “M02 REQD-WINDSOR CASE MM/DD/YYYY (date of input).” These cases, whether identified as “WINDSOR” or “SAME SEX” in the SSR remarks, will appear on the Force Pay Listing website, which updates quarterly. Monitor these cases closely; the system will not automatically terminate the claimant's eligibility, should a relevant period of ineligibility occur.

G. Mandatory case review of SSI same-sex marriage determinations

  1. The technician initiating the initial claim or post-eligibility event prepares a Report of Contact (DROC) summarizing the rationale for the determination and listing any supporting documentation. For a non-MSSICS case, the technician stores the Report of Contact (Form SSA-5002) in the electronic folder or NDRED.

  2. The technician locks the DROC screen.

  3. The TE or Management Official reviews and documents approval on a separate DROC, indicating that the FO determination is accurate and policy-compliant. For a non-MSSISCS case, the reviewer stores an SSA-5002 in the electronic folder or NDRED.

  4. The TE or Management Official locks the DROC screen.

  5. This DROC screen also serves as approval of a Force Due transaction, satisfying the policy requirement in SM 01701.001.

  6. The TE or Management Official processes the Force Due action through Direct SSR Update, using his or her PIN.

H. Example of a same-sex marriage determination: post-eligibility SSI action

During a scheduled redetermination in January 2015, Marilyn reported that an unrelated adult, Katie, had moved into her household in April 2013. Following the POMS instructions available in January 2015, the claims representative (CR) did not develop for a holding out marriage.

When the field office conducts a redetermination for Marilyn in February 2016, the CR follows instructions in GN 00210.800C.2. in this section and determines that Marilyn and Katie were holding out as a married couple from the time Katie moved into Marilyn’s home.

The earliest month subject to revision cannot exceed two years retroactively from the determination that Marilyn and Katie were holding themselves out as married. We consider income from two years plus two months to account for budget months when a retrospective monthly accounting computation applies.

Katie and Marilyn’s combined resources never exceeded the limit, nor did Katie’s income make Marilyn ineligible for SSI; however, the CR determined that income deemed from Katie beginning in January 2014 should have reduced Marilyn’s payment computation with March 2014 and continuing.

The CR follows instructions in EM–16013 REV about overpayment waivers and reduces Marilyn’s SSI payment starting with the current computation month.

I. References

  • EM–16013 REV Processing SSI Overpayments Resulting from Same-Sex Marriage

  • GN 00204.007 Application Filing Date

  • GN 00210.005 Processing Cases Involving Same-Sex Marriages and Non-Marital Legal Relationship that were Previously on Hold

  • GN 00210.006 Same-Sex Marriages and Same-Sex Non-Marital Legal Relationships Established in Foreign Jurisdictions

  • GN 00210.850 Same-Sex Parents, a Parent’s Same-Sex Marriage, and Supplemental Security Income (SSI) Parent-Child Deeming

  • GN 00305.020 Preferred Proof of Ceremonial Marriage

  • GN 00305.025 Secondary Proof of Ceremonial Marriage

  • NL 00802.015 Completion of the Manual SSA-L8025-U2, Notice of Award

  • NL 00802.025 Completion of the Manual SSA-L8030-U2, Notice of Disapproved Claim

  • SI 00501.150 Determining Whether a Marital Relationship Exists

  • SI 00501.152 Determining Whether Two Individuals Are Holding Themselves Out as a Married Couple

  • SI 00603.002 Explanation of Deferred and Simultaneous Development

  • SI 00603.004 Simultaneous Development Application Process

  • SI 00603.031 When a Preeffectuation Review Contact (PERC) Is Required

  • SI 04070.010 Title XVI Administrative Finality - General Reopening Policies

  • SM 01701.001 How Force Due and Force Payment Work

  • MSOM BUSSR 002.006 Force Due Process

  • MSOM MSSICS 023.003 SSR Remarks (CRMK)


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/0200210800
GN 00210.800 - Same-Sex Marriage, SSI Same-Sex Couples, and SSI Deeming from a Same-Sex Ineligible Spouse - 12/22/2014
Batch run: 03/28/2016
Rev:03/28/2016