On May 15, 2008, the California Supreme Court legalized same-sex marriages. The ruling took effect on June 17, 2008. On June 6th, the Social Security Administration issued EM-08061, an Emergency Message telling the 61,000 member staff to "wait for instructions" before answering any questions about the effect of the ruling on certain Social Security benefits accorded to spouses.
For example, SSI rules provide that a disabled or elderly person's financial eligibility for SSI benefits depends on having low income. Four types of income are considered: earned (generally, wages or net self-employment income), unearned income (savings accounts and other investment income), in-kind support and maintenance (someone else providing food and shelter), and deemed income, the earnings of a spouse that are regarded as being available to the disabled or elderly spouse.
Will they count the income and resources of a same-sex spouse to deny benefits to a disabled partner?
The administration has not felt restrained in using the law to the disadvantage of non-traditional heterosexual couples. For example, most states, like Florida in 1968, abandoned "common law marriage" between a man and a woman. Indeed, SSA has denied Title II regular SSA spousal retirement or disability benefits to heterosexual partners who did not have a marriage license, but if the person sought Title XVI SSI benefits, denied them on the grounds they were holding out to be a husband and wife. So basically, SSA said that to get money from us on Social Security taxes you paid, we regard you as NOT married, but to get money from us for SSI benefits, we again deny you but regard you as being married.
The ruleapplied only to a man and a woman in a "holding out" alleged marital relationship. It created the anomaly that a heterosexual man and woman holding themselves out to be husband and wife were denied benefits, but a same-sex couple in a husband and wife relationship were approved for SSI.
Now, will the administration recognize under federal law that benefits should be denied to same-sex couples? If they deny SSI benefits to same-sex couples, this administration will be admitting that the same-sex couple are "married." Ah, hoisted on the petard of the Defense of Marriage Act!