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- Protected Social Security Benefits Under Law
If you have worked and earned sufficient income, you are eligible for Social Security benefits, which include retirement. If you pass away, Social Security also allows for survivor's benefits for your spouse and dependent children. Because Social Security is a federal program, however, it conforms to federal law, including a statute passed in the 1990s known as the Defense of Marriage act. This affects common-law spouses and "domestic partners."
If you have a common-law spouse or domestic partner, the laws of your state may recognize your marriage as fully legal. You enjoy all the civil rights and protections afforded to other married couples, including the right to state pension and disability benefits. For Social Security survivor's benefits, however, federal law is applicable and supersedes state law.
Defense of Marriage Act
Passed in 1996 and signed into law by President Clinton, the Defense of Marriage Act bars all federal benefits to same-sex couples or domestic partnerships of any variety. This extends to Social Security spousal and survivor's benefits, which are unavailable to domestic partners even if their marriage is recognized by state law. A domestic partner is treated by Social Security at all times as a single individual and eligible for benefits only on his own record of Social Security payments.
Conventional Marriages and Social Security
Conventional marriages afford partners additional benefits from the Social Security system. This includes survivor's benefits beginning at age 60, spousal benefits at age 62 and benefits for dependent children, all on the record of a single wage earner. These benefits are collectively subject to a family maximum amount, however, which averages between $1,500 and $1,800 a month.
Lump-Sum Death Benefits
Social Security also denies lump-sum death benefits to domestic partners. This benefit of $225 was available on the death of a covered worker and intended to assist the surviving spouse with funeral and burial arrangements. Taking all Social Security programs into consideration, a 2009 study by the Center for American Progress found that the law resulted in a denial of $8,000 per year, on average, in benefits otherwise available to partners in a conventional marriage.