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DOMA and Social Security Disability: What You Should Know

In 1996, the Defense of Marriage Act ("DOMA") was enacted. This United States federal law restricted marriage benefits to marriages between one man and one woman. As a result of DOMA, same-sex marriages are not recognized for federal purposes, including Social Security survivors' benefits.

In the unfortunate instance that a client of ours passes away while their Social Security Disability claim is still pending, we often turn to their spouse or next-of-kin, and allow them to decide if they wish to continue to pursue the claim on their family member's behalf. But, for clients involved in same-sex marriages, the same rules do not apply. In one particular instance, the wife of one of our clients called to inform us of her passing. Despite the fact that their same-sex marriage was legally recognized by their state, our client's wife knew the federal government did not recognize the marriage, and would prevent her from pursuing her wife's Social Security Disability benefits.

There's a good chance that most claims would have stopped there. After all, due to DOMA, our client's marriage was not federally recognized for the purpose of collecting Social Security benefits. But we don't shy away from the tough cases. With the permission of our client's wife, we decided to continue with the claim. The Administrative Law Judge ruled that our client's wife had standing to pursue her wife's claim because she had an interest in her estate. The ALJ also found our client to be disabled. After much struggle, and several hearings, our client was finally awarded her benefits.

There is a chance that DOMA may be overturned, and the disability applications filed by individuals in same-sex marriages may be protected. Even though applications will be denied under DOMA, the denials and applications can be used as protective filing dates if and when the courts overturn the regulation.

Regardless of your marital status, if you are disabled and can no longer work, applying for Social Security Disability may be an option for you. At Binder & Binder®, we do not let the government intimidate our clients.

We do not know if the Social Security Administration can continue to deny same-sex spouses benefits that opposite-sex spouses have, until the Supreme Court rules on the matter. The safest thing to do right now is to request an application for benefits. It is likely that it will not be accepted but the request to file should be recognized as a protective filing date for benefits so if the Supreme Court rules that DOMA is unconstitutional, benefits may be based on the date you requested to apply and not the date you file post decision. Cash benefits are based on the date you file so a protective filing date can be very important for retroactive benefit purposes. Such a request can be made in person or by certified mail. Get a receipt if you go in person and keep a copy of your letter if you do so by mail.

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