ISSUED: February 12, 2014
REVISED: July 29, 2014
REVISED: September 23, 2016
REVISED: October 2, 2017
I. Purpose
This temporary instruction (TI) advises Office of Hearings
Operations (OHO) and Office of Analytics, Review, and Oversight (OARO)
employees of policies and procedures
for adjudicating title II and title XVI claims involving same-sex
marriages and non-marital legal relationships in light of the Supreme Court's
decisions in United
States v. Windsor and Obergefell v. Hodges.
When a same-sex marriage or non-marital legal relationship
is not material to the decision, do not apply these instructions.
II. Background
Because of the Supreme Court decisions in U.S.
v. Windsor and Obergefell v. Hodges, same-sex
marriages are permitted and recognized in all States and U.S. Territories;
and the Social Security Administration (SSA) is no longer prohibited
from recognizing same-sex marriages for the purpose of determining
entitlement to or eligibility for benefits or payment amount.
We will update this TI periodically as additional instructions become
available.
III. Definitions
State – For purposes
of determining marital status, the term “State” includes
any one of the 50 United States, the District of Columbia, Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern
Mariana Islands.
Domicile – For
our purpose, the term “domicile” means the place where
a person has his or her true, fixed, and permanent home to which
he or she intends to return whenever away. As explained in Program
Operations Manual System (POMS) GN 00305.001B.2., every person
has a domicile and can only have one at a time.
When a claimant is domiciled in a
foreign country, the Social Security Act requires us to apply the
law that courts in the District of Columbia would use to determine
marital status.
IV. Referrals for a Legal
Opinion
In some situations, POMS processing instructions require that
adjudicators request a legal opinion from the Regional Chief Counsel
(RCC). In these cases, the opinion generally will be included with
documentation the field office (FO) or processing center (PC) forwards
to the servicing hearing office (HO). However, there may be instances
in which neither the legal opinion nor the summary is included in
the documentation provided.
If the POMS section(s) cited in the pertinent case processing
instructions in V below requires a legal opinion and neither the
opinion nor the summary is included in the file, HO staff will:
•
Check POMS PR, Title
II Regional Chief Counsel Precedents and POMS PS, Title XVI Regional
Chief Counsel Precedents, as appropriate, for a legal precedent
opinion. See, for example, PR 058: MARITAL RELATIONSHIP --
Same-Sex Relationships. Since legal precedent opinions published
in POMS PR and PS are available to the public, personally identifiable
information is removed or altered. For more information, see POMS GN 01010.810C.
•
Refer the case to the appropriate OHO Regional
Office (RO) if there is no relevant opinion in POMS PR or PS, or
if an opinion no longer seems applicable (e.g., due to changes in
State law or modifications by a court decision). The RO will refer
the claim to the RCC for a legal opinion, consistent with the guidance
in POMS GN
01010.815 and GN 01010.820. See also Hearings,
Appeals and Litigation Law (HALLEX) Manual HA 01220.040 B.
There may be instances in which the summary of the legal opinion
is provided, but not the legal opinion itself. If the information
in the summary satisfactorily resolves the issue, there is no need
to request the legal opinion. However, HO staff may request the
opinion from the RCC, through the OHO RO.
An Appeals Council adjudicator who believes an RCC opinion
is necessary to decide a case involving a same-sex marital relationship
issue will consult his or her Division Chief Administrative Appeals
Judge.
V. Case Processing
SSA has issued instructions for processing title II cases
identified in V.A.1., V.B.1., V.C.1., V.D.1., and V.E.1. below,
and title XVI cases identified in V.F.1. below.
When a same-sex marriage or non-marital
legal relationship is not material to the determination of entitlement
or eligibility, or payment amount, process the claim without applying
these instructions. For example, do not apply these instructions
when a number holder (NH) in a same-sex marriage applies for retirement
benefits on his or her own earnings record.
A. Aged Spouse, Spouse
With Child-in-Care, and Surviving Spouse Benefits
1. Claim Types for
Aged Spouse, Spouse With Child-in-Care, and Surviving Spouse Benefits
Instructions are now available in POMS GN 00210.100 for processing
spouse claims involving same-sex marriages or non-marital legal
relationships. These instructions address claims for benefits as
an aged spouse (including aged divorced spouse and aged independently
entitled divorced spouse), a spouse with a child in his or her care
(child-in-care) or a surviving spouse (including a surviving divorced
spouse and a disabled surviving spouse).
•
Aged spouse claims
can be identified by the following beneficiary identification codes (BIC):
B, B1, B3, B4, B6, B8, B9, BA, BD, BG, BH, BJ, BN, BP, BQ, BR, and
BT.
•
Spouse with child-in-care claims can be identified
by the following BICs: B2, B5, B7, BK, BL, BW, and BY.
•
Surviving spouse claims can be identified by the
following BICs: D6, D7, DC, DM, DS, DV, DW, DX, DY, DZ, W6, W7,
W8, WC, WJ, WR, and WT.
•
Widow(er)'s claims can be identified by the following
BICs: D, D1, D2, D3, D8, DD, DG, DH, DJ, and DK.
•
Disabled widow(er)'s claims can be identified by
the following BICs: W, W1, W2, W3, W4, W5, W9, WB, WF, and WG.
For more information on BICs, including those for Medicare
Qualified Government Employment (MQGE) only claims, see POMS SM 00550.010.
2. Processing Considerations
OHO and OARO staff will process aged spouse claims and spouse with
child-in-care claims involving same-sex marriages or non-marital
legal relationships by following normal case processing procedures
and complying with the guidance below.
For purposes of title II and Medicare benefits:
•
We will also recognize non-marital legal relationships
using the policies and applicable procedures set out in GN 00210.004.
•
The claimant must meet all other factors of entitlement
for spouse's benefits as described in 20 CFR 404.330, 20 CFR 404.331, 20 CFR 404.335 and 20 CFR 404.336.
When considering the duration requirement, do not consider the date
of the Windsor or Obergefell decision;
use the date of the marriage or non-marital legal relationship.
For more information, see POMS GN 00210.100.
B. Mother's or Father's
Benefits
1. Claim Types for
Mother's or Father's Benefits
Instructions are now available in POMS GN 00210.420 for processing
claims for mother's or father's benefits when the surviving spouse
(or surviving divorced spouse) of a same-sex marriage or non-marital
legal relationship has an entitled child of the deceased NH in his
or her care. The mother's and father's claim types can be identified
by the following BICs:
•
For mother's claims,
E, E2, E7, E8, or EA.
•
For father's claims, E4, E6, EF, EG, or EH.
•
For surviving divorced mother's claims, E1, E3,
EB, EC, or ED.
•
For surviving divorced father's claims, E5, E9,
EJ, EK, or EM.
For more information on BICs, see POMS SM 00550.010.
2. Processing Considerations
OHO and OARO staff will process mother's and father's claims involving
same-sex marriages or non-marital legal relationships by following
normal case processing procedures and complying with the guidance
below.
For purposes of title II and Medicare benefits:
•
We will use the policy
and applicable procedures set out in GN 00210.420.
•
The claimant must meet all other factors of entitlement
for mother's or father's benefits as described in 20 CFR 404.339 and 20 CFR 404.340.
Regarding 20 CFR 404.339(b), no
application is required if the claimant was entitled to wife's or
husband's benefits for the month before the NH died, per RS 00208.001C,
third bullet. Please also note that 20 CFR 404.339(b) does
not mention husband's benefits, but the section applies equally
to husband's and wife's benefits.
1. Claim Types for
Child Benefits
Instructions are now available in POMS for processing certain
child claims.
•
If the child is the stepchild of the NH based on
a same-sex marriage or non-marital legal relationship, see POMS GN 00210.505.
•
If the child is not the biological child, adoptive
child, or alleged stepchild of the NH, and alleges a parent-child
relationship based on a same-sex relationship, refer the claim to the
RCC through the OHO RO if there is no pertinent opinion in POMS
PR or an opinion no longer seems applicable (e.g., due to changes
in State law or modifications by a court decision).
Child claims can be identified by BICs C1 through C9 and CA
through CR. Although the BIC does not identify the child's relationship
to the NH, the Child Relationship (CHLD REL) data line on the Master
Beneficiary Record displays the child's relationship to the NH (e.g.,
2 TYPE-Stepchild). For more information, see SM 00510.220.
2. Processing Considerations
for Benefits as a Stepchild
OHO and OARO staff will process stepchild claims in which entitlement
is dependent on the NH's same-sex marriage or non-marital legal
relationship to the child's parent or adoptive parent by following
normal case processing procedures and complying with the guidance
below.
For purposes of entitlement to title II benefits as a stepchild
of the NH:
•
We will use the policy
and applicable procedures set out in GN 00210.505.
•
The claimant must meet all other factors of entitlement
for child's benefits as described in 20 CFR 404.350.
D. Lump-Sum Death Payment
1. Claim Types for
Lump-Sum Death Payment
Instructions are available in POMS GN 00210.600 for processing
lump-sum death payment (LSDP) claims involving same-sex marriages
or non-marital legal relationships. LSDP claims not filed in conjunction
with a claim for monthly benefits can be identified by the following
Payment Indicator Codes (PIC): G1, G2, G3, G4, G5, G6, G7, G8, or
G9. For more information on PICs, see POMS SM 00550.010.
2. Processing Considerations
OHO and OARO staff will process LSDP claims involving same-sex marriages
or non-marital legal relationships by following normal case processing
procedures and complying with the guidance below.
In processing LSDP claims:
•
The claimant must meet all other factors of entitlement
for the LSDP as described in 20 CFR 404.391, which applies
to a widow(er) who was living in the same household as the NH (as
defined in 20
CFR 404.347), or 20 CFR 404.392, which applies
when there is no widow(er) who was living in the same household
as the NH.
E. Supplemental Security
Income (SSI)
POMS GN
00210.800 contains instructions
for processing SSI claims, appeals, and post-eligibility actions
that require determining a same-sex couple's marital status for
SSI purposes. (See also SI 00501.150 on determining
whether a marital relationship exists and SI 00501.152 on determining
whether two individuals are holding themselves out as a married
couple.)
A same-sex marriage may affect SSI eligibility and payment
amount when an SSI claimant is a member of the same household as
his or her same-sex spouse or when an SSI child claimant and his
or her parent are members of the same household as the parent's
same-sex spouse.
2. Determining a Same-Sex
Couple's Marital Status for SSI Purposes
Consider the same-sex couple as married if we recognize the
marital relationship for SSI purposes using the policies and applicable
procedures set out in GN 00210.800. (See also SI 00501.150
and SI 00501.152.)
3. Processing Considerations
When the Claimant Is Not a Child
For SSI claims and appeals, the claimant must meet all SSI
eligibility factors as described in 20 CFR 416.202. For more
information regarding 20 CFR 416.202(e), see 20 CFR 416.214.
For post-eligibility actions related to a change in marital
status for SSI purposes, consider whether:
4. Processing Considerations
When the Claimant Is a Child
For SSI claims and appeals, the claimant must meet all SSI
eligibility factors as described in 20 CFR 416.202. For more
information regarding 20 CFR 416.202(e), see 20 CFR 416.214.
For an explanation of who is considered a child and the effects
of being considered a child, see 20 CFR 416.1856 and 416.1851 respectively.
POMS SI
00501.010 and SI
00501.015 contain instructions for processing SSI claims,
appeals, and post-eligibility actions when the SSI claimant is a
child who lives either with parents of the same sex or with his
or her parent and the parent's same-sex spouse (stepparent). (Note
that an eligible child may have more than two parents in his or
her household or only one parent in his or her household.)
•
A child applying for
or receiving SSI who lives either with two parents of the same sex or
with his or her parent and the parent's same-sex spouse (stepparent)
is presumed to share their income and resources.
•
When considering a parent-child relationship for
SSI deeming purposes, SSA generally accepts allegations that an
individual is the child's parent or stepparent, unless there is information
to the contrary.
•
When the child lives with two parents of the same
sex, or one parent and the parent's same-sex spouse, we will consider
the income, resources, and ineligible children of both for deeming
purposes.
•
When the child lives with one parent and the parent's
alleged same-sex spouse, we will consider the couple married if
we may recognize the marital relationship for SSI purposes using
the policies and applicable procedures set out in GN 00210.800.
VI. Overpayments
For instructions for processing title II claims and post-entitlement
actions in cases where recognition of a same-sex marriage results
in an overpayment, see EM-17004.
For instructions for processing SSI post-eligibility actions
that result in an overpayment following recognition of a same-sex
marriage, see EM-16013
REV 2.
VII. Inquiries
If the claimant or his or her appointed representative inquires
as to the status of a hearing request or request for Appeals Council
review, reply to the extent possible using the information above.
Refer public inquiries about issues involving same-sex marriages
not discussed above to the Office of Public Inquiries at the following
address:
Social Security Administration
Office of Public
Inquiries
Windsor Park Building
6401 Security Blvd.
Baltimore,
MD 21235
At the hearing level, direct all program-related and technical
questions to the appropriate RO support staff. RO support staff
may refer questions or unresolved issues to headquarters contacts
in the Office of the Chief Administrative Law Judge.
At the Appeals Council level, direct all program-related and
technical questions to the Executive Director's office.