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Recently, the Social Security Administration issued “Windsor Same Sex Marriage Claims” (“Windsor Instructions”) as part of its “Program Operations Manual System” (POMS).  The Windsor Instructions provide guidance on determining benefits for same sex married couples in a post Windsor world.  The Windsor Instructions state, “because of the decision, we are no longer prohibited from recognizing same-sex marriages for purposes of determining benefits.”

Under the new guidance, any claims filed on or after June 26, 2013, or any claims that were pending final determination on June 26, 2013, are now subject to the Windsor Instructions.  The Windsor Instructions provide payment of claims when the applicant is:

  1. Married in a state that permits same sex marriage, and
  2. Is domiciled at the time of application or during the time the claim is pending final determination, in a state that recognizes same sex marriage.

Additionally, the Windsor Instructions direct the applications of married couples that do not meet both of the above requirements to be placed on hold, and not simply denied. This would apply to couples married in a recognition state, but residing in a non-recognition state. Also, it covers couples who took part in a civil union before same sex marriage was recognized in their state.

In practice, a same sex couple married and residing in a recognition state, may now apply for spousal benefits. This is appropriate not just after the death of the first spouse, but also when one spouse is a high wage earner, and the other spouse a low wage earner. Under Social Security laws, an applicant is entitled to the higher of the applicant’s calculated social security or one-half of their spouse’s social security. For a low wage earner, this could be a large difference.

For those same sex couples married in a recognition state, but residing in a non-recognition state such as Illinois, Michigan, Ohio, or Florida, the application will be placed on hold until further notice.

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