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! 

 

On July 19, 2008, we will all have access to a new Internet tool courtesy of the Social Security Administration.  It is called the benefit estimator, and will allow each of us to secure a reasonably accurate estimate, online, of our Social Security retirement or disability benefit monthly check amount. 

The benefit estimator will use live SSA records to make the calculations.  We will have to enter some identifying information on the SSA website for authentication purposes.  We will then be able to check out different scenarios and see how our benefits would be impacted, such as taking early retirement at age 62, or waiting to full retirement age, such as age 66 or 67.

Check SSA’s main web-pageafter July 19th for instructions.

…at least for a couple of months.

The general rule for SSI financial eligibility is that an item of income received, is "income in the month received, and becomes a resource (asset) on the first of the following month" if still retained by the disabled or elderly SSI recipient.

However, EM-08029, an Emergency Message to SSA staff, declares that checks received as part of the Economic Stimulus program will not count as income in the month received, and will NOT become a resource for two months more:

 Income

Any payment made to any individual based on this law will not be counted as income for purposes of determining eligibility and payment amount for SSI.

Resources

If the payment is retained by the individual, it will not be counted as a resource for 2 months following the month of receipt. For example, if the individual receives a payment in May 2008, it will be excluded from resources for June 2008 and July 2008. In this example the funds, if retained, would be countable as a resource starting in August 2008.

I doubt poor people will have to wait two months to spend that $600 check.  It’ll be gone in a jiffy paying for that $4.50 per gallon Texas gasoline!

It won’t come up often, but will certainly help in certain situations.  The general rule is that eligibility for SSI disability payments, and SSI-related Medicaid, for minor children depends on the income and assets of the parents, which are "deemed" to be available to the child.  "Parents" include "step-parents."  But only the income and assets of a parent or step-parent who resides with the child are deemed against that child’s eligibility for disability benefits and Medicaid.

An unusual situation arises when the natural parent of a child terminates the relationship with the step-parent, moves out of the family home, but leaves the child living with the step-parent.  For years, SSA’s position was that even where the parent-step-parent relationship ended, the child lost eligibility for SSI disability benefits through deeming of the (former) step-parent.

The courts did not agree.  In Florez v. Callahan, the Second Circuit reversed SSA’s position:

"The plaintiff stepfather took on the care and support of his emotionally disabled stepson after his wife, the child’s mother, abandoned her family. When the stepfather applied for SSI disability benefits on behalf of his stepson, the Social Security Administration….

"Plaintiff, in assuming the sole responsibility of caring for his wife’s child after she left home, shows himself to be a person who plainly believes that in passing through life, any kindness he can show to another must be shown now, and not put off until another day. One would suppose that a social services agency would encourage such a generous attitude. But, the Social Security Administration adopted quite the opposite position and penalized the stepfather by ruling that his income, prior to the child’s entering the psychiatric center, was attributable to the child and thereby reduced the amount of monthly SSI benefits. The stepfather appeals this first ruling, and also appeals a second ruling that interpreted the regulations to authorize a reduced flat-rate payment of SSI benefits once his stepson was admitted to the medical care facility. "

The court reversed SSA’s rule in 1998, at least for residents of the Second Circuit.  On May 15, 2008, the Social Security Administration finally nationalized the rule adopted by the court and issued a new regulation, modifying 20 CFR 416.1160. 

Our 18 page booklet, titled "What every personal injury attorney needs to know about SSI, Medicaid and Special Needs Trusts" in Question and Answer format, has been revised to include the latest 2008 federal benefit figures, and developments in Social Security and Florida Medicaid law.