TN 27 (02-16)

GN 00210.100 Same-Sex Relationships – Spouse’s Benefits

Follow these instructions to determine if a claimant is entitled to Title II and Medicare benefits as the number holder's (NH's) same-sex spouse including the following.

  • Aged spouse (including divorced spouse and independently entitled divorced spouse);

  • Spouse with child-in-care; and

  • Surviving spouse (including surviving divorced spouse and disabled surviving spouse).

A. Policy for spouse’s benefits involving same-sex couples

To be entitled to a Title II or Medicare benefit as a spouse based on a same-sex marriage or a non-marital legal relationship (NMLR), the claimant must meet the applicable entitlement factors as set out in RS 00200.000 and also in this section.

Use these instructions when a claimant is:

  • age 62 or older and alleges a same-sex marriage or NMLR to an NH who is entitled to retirement insurance benefits (RIB) or disability insurance benefits (DIB);

  • age 62 or older and alleges a same-sex marriage or NMLR to a living NH who, although not entitled to RIB or DIB, is fully insured;

  • age 60 or older (age 50 if disabled) and alleges a same-sex marriage or NMLR to an NH who is deceased; or

  • any age and alleges having in his or her care a child who is entitled to, but not necessarily receiving, benefits on the NH’s record.

NOTE: If the child is entitled on more than one earnings record, refer to RS 00615.772 to determine the earnings record on which benefits will be paid.

B. How to determine whether the claimant is a spouse for benefit purposes

Determine if:

  • we will recognize the marriage or NMLR for benefit purposes;

  • the claimant meets the age or child-in-care requirement; and

  • the marriage or NMLR meets the duration requirement or an alternative to the duration requirement.

When you are ready to process the claim as an award or denial, follow the instructions in GN 00210.020.

1. Do we recognize the claimant’s marriage or NMLR for benefits purposes?

Consult GN 00210.002, GN 00210.004, or GN 00210.006 to determine if we will recognize the marriage or NMLR for the purposes of Title II and Medicare benefits.

2. Does the claimant meet the age or child-in-care requirement?

If the claimant is under full retirement age, determine if the claimant meets the child-in-care requirement. Benefits for a spouse with a child-in-care are unreduced regardless of the claimant’s age. For more information about meeting the child-in-care requirement, refer to RS 01310.000.

If you determine the spouse does not meet the child-in-care requirement, but the child may be entitled on the NH’s earnings record, take an application for child’s insurance benefits (CIB).

IMPORTANT: Take the child’s application before you proceed with the spouse’s claim. If a disability determination is necessary for a child age 15 ½ or older in order to entitle the claimant to child-in-care benefits, refer to DI 11020.060 and DI 23505.001 for more information.

3. Does the claimant meet the duration-of-marriage requirement?

Do not use the date of the Windsor or Obergefell Supreme Court decision in determining duration of marriage. Use the date the couple was married or entered into the NMLR. To determine if an NMLR (or a combination of NMLR and marriage) meets the duration requirement, and whether a legal opinion is necessary, refer to GN 00210.004E.2.

a. Currently married spouses

The relationship must meet the one-year duration of marriage requirement or one of the alternatives to the one-year duration-of-marriage requirement. Refer to RS 00202.001B for more information.

b. Divorced spouses and independently entitled divorced spouses

The relationship must meet the ten-year duration of marriage requirement. Refer to RS 00202.005 for more information.

c. Surviving spouses and surviving divorced spouses

The relationship must meet the 9-month duration of marr