Several months ago, I had the opportunity to represent a couple in their claims for Social Security Disability benefits. My heart went out to them because they both had significant health problems and they needed as much help as they could get. Whenever I had a chance to talk to them as a couple, they made me laugh. With their cursing, arguing, and eventual flirting, it was clear to me that the two of them were very much in love. They were dedicated to supporting each other and they were very aggressive and passionate about making sure no one took advantage of the other person.
I am happy to say that both of them won their disability claims and I sincerely hope that their quality of life improves. However, as I talked to them, I wondered one thing. What happens to their benefits if one of them dies? The reason I ask is that they are a same sex couple. Under federal regulations, a surviving spouse may be eligible to receive the deceased spouse’s disability benefits, but this may not be true for same sex couples.
To decide your relationship as the insured’s widow or widower, the Social Security Administration looks to the laws of the State where the insured had a permanent home when he or she died. So, in essence, if your state doesn’t recognize same sex marriage, neither will the federal government when it comes to Social Security benefits.
Up to now, the issue of the constitutionality of gay marriages has been a ‘state court fight’. However, a federal judge in San Francisco will hear closing arguments today (Wednesday, June 16, 2010) in the first federal trial to consider the constitutionality of a gay marriage ban. The judge is expected to rule on whether California’s gay marriage ban, Proposition 8, approved by voters in November of 2008, violates the U.S. Constitution. The decision in this case probably will not not be the final one and we can expect it to go all the way to the United States Supreme Court.
Which brings me back to the couple I represented. I wonder how this case affects them. No, they are not married, and, no, I haven’t heard them speak at all about survivor’s benefits. They are a ‘happy go lucky’ couple just getting on each other’s nerves like every other couple. But they are not like every other couple. They happen to be gay. Still, they are committed to taking care of the other person’s needs. They pay taxes. They are American citizens. So why is a program dedicated for the benefit of the American people not available to all of the American people? How is a state permitted to decide just who is entitled to federal benefits designed to provide benefits to survivors of loved ones?
I don’t know but we may be getting close to a resolution on this one.
