I-5-1-19.Processing Appeals Involving the Marital Status of a Same-Sex Couple

1. Claim Types for Aged Spouse, Spouse With Child-in-Care, and Surviving Spouse Benefits

Instructions are now available in POMS GN 00210.100 for processing spouse claims involving same-sex marriages or non-marital legal relationships. These instructions address claims for benefits as an aged spouse (including aged divorced spouse and aged independently entitled divorced spouse), a spouse with a child in his or her care (child-in-care) or a surviving spouse (including a surviving divorced spouse and a disabled surviving spouse).

• Aged spouse claims can be identified by the following beneficiary identification codes (BIC): B, B1, B3, B4, B6, B8, B9, BA, BD, BG, BH, BJ, BN, BP, BQ, BR, and BT.

• Spouse with child-in-care claims can be identified by the following BICs: B2, B5, B7, BK, BL, BW, and BY.

• Surviving spouse claims can be identified by the following BICs: D6, D7, DC, DM, DS, DV, DW, DX, DY, DZ, W6, W7, W8, WC, WJ, WR, and WT.

• Widow(er)'s claims can be identified by the following BICs: D, D1, D2, D3, D8, DD, DG, DH, DJ, and DK.

• Disabled widow(er)'s claims can be identified by the following BICs: W, W1, W2, W3, W4, W5, W9, WB, WF, and WG.

For more information on BICs, including those for Medicare Qualified Government Employment (MQGE) only claims, see POMS SM 00550.010.

2. Processing Considerations

OHO and OARO staff will process aged spouse claims and spouse with child-in-care claims involving same-sex marriages or non-marital legal relationships by following normal case processing procedures and complying with the guidance below.

For purposes of title II and Medicare benefits:

• We will recognize valid marriages using the policy and applicable procedures set out in GN 00210.100, as well as GN 00210.002, GN 00210.003, and GN 00210.006.

• We will also recognize non-marital legal relationships using the policies and applicable procedures set out in GN 00210.004.

• The claimant must meet all other factors of entitlement for spouse's benefits as described in 20 CFR 404.330, 20 CFR 404.331, 20 CFR 404.335 and 20 CFR 404.336. When considering the duration requirement, do not consider the date of the Windsor or Obergefell decision; use the date of the marriage or non-marital legal relationship. For more information, see POMS GN 00210.100.

1. Claim Types for Mother's or Father's Benefits

Instructions are now available in POMS GN 00210.420 for processing claims for mother's or father's benefits when the surviving spouse (or surviving divorced spouse) of a same-sex marriage or non-marital legal relationship has an entitled child of the deceased NH in his or her care. The mother's and father's claim types can be identified by the following BICs:

• For mother's claims, E, E2, E7, E8, or EA.

• For father's claims, E4, E6, EF, EG, or EH.

• For surviving divorced mother's claims, E1, E3, EB, EC, or ED.

• For surviving divorced father's claims, E5, E9, EJ, EK, or EM.

For more information on BICs, see POMS SM 00550.010.

2. Processing Considerations

OHO and OARO staff will process mother's and father's claims involving same-sex marriages or non-marital legal relationships by following normal case processing procedures and complying with the guidance below.

For purposes of title II and Medicare benefits:

• We will use the policy and applicable procedures set out in GN 00210.420.

• We will recognize same-sex marriages and non-marital legal relationships using the policy and applicable procedures set out in GN 00210.002, GN 00210.003, GN 00210.004, and GN 00210.006.

• The claimant must meet all other factors of entitlement for mother's or father's benefits as described in 20 CFR 404.339 and 20 CFR 404.340.

1. Claim Types for Child Benefits

Instructions are now available in POMS for processing certain child claims.

• If the child seeking benefits is the natural or adoptive child of the NH, see POMS GN 00306.001C.1.d., 20 CFR 404.350, and 20 CFR 404.355 (natural child) or 20 CFR 404.356 (legally adopted child).

• If the child is the stepchild of the NH based on a same-sex marriage or non-marital legal relationship, see POMS GN 00210.505.

• If the child is not the biological child, adoptive child, or alleged stepchild of the NH, and alleges a parent-child relationship based on a same-sex relationship, refer the claim to the RCC through the OHO RO if there is no pertinent opinion in POMS PR or an opinion no longer seems applicable (e.g., due to changes in State law or modifications by a court decision).

Child claims can be identified by BICs C1 through C9 and CA through CR. Although the BIC does not identify the child's relationship to the NH, the Child Relationship (CHLD REL) data line on the Master Beneficiary Record displays the child's relationship to the NH (e.g., 2 TYPE-Stepchild). For more information, see SM 00510.220.

2. Processing Considerations for Benefits as a Stepchild

OHO and OARO staff will process stepchild claims in which entitlement is dependent on the NH's same-sex marriage or non-marital legal relationship to the child's parent or adoptive parent by following normal case processing procedures and complying with the guidance below.

For purposes of entitlement to title II benefits as a stepchild of the NH:

• We will use the policy and applicable procedures set out in GN 00210.505.

• We will recognize valid marriages and non-marital legal relationships using the policy and applicable procedures set out in GN 00210.002, GN 00210.003, GN 00210.004, and GN 00210.006.

• The claimant must meet the factors of entitlement for stepchild's benefits as described in 20 CFR 404.357 and 20 CFR 404.363.

• The claimant must meet all other factors of entitlement for child's benefits as described in 20 CFR 404.350.

1. Claim Types for Lump-Sum Death Payment

Instructions are available in POMS GN 00210.600 for processing lump-sum death payment (LSDP) claims involving same-sex marriages or non-marital legal relationships. LSDP claims not filed in conjunction with a claim for monthly benefits can be identified by the following Payment Indicator Codes (PIC): G1, G2, G3, G4, G5, G6, G7, G8, or G9. For more information on PICs, see POMS SM 00550.010.

2. Processing Considerations

OHO and OARO staff will process LSDP claims involving same-sex marriages or non-marital legal relationships by following normal case processing procedures and complying with the guidance below.

In processing LSDP claims:

• We will recognize same-sex marriages or non-marital legal relationships using the policy and applicable procedures set out in GN 00210.600, as well as GN 00210.002, GN 00210.003, GN 00210.004, and GN 00210.006.

• The claimant must meet all other factors of entitlement for the LSDP as described in 20 CFR 404.391, which applies to a widow(er) who was living in the same household as the NH (as defined in 20 CFR 404.347), or 20 CFR 404.392, which applies when there is no widow(er) who was living in the same household as the NH.

1. Introduction

POMS GN 00210.800 contains instructions for processing SSI claims, appeals, and post-eligibility actions that require determining a same-sex couple's marital status for SSI purposes. (See also SI 00501.150 on determining whether a marital relationship exists and SI 00501.152 on determining whether two individuals are holding themselves out as a married couple.)

A same-sex marriage may affect SSI eligibility and payment amount when an SSI claimant is a member of the same household as his or her same-sex spouse or when an SSI child claimant and his or her parent are members of the same household as the parent's same-sex spouse.

2. Determining a Same-Sex Couple's Marital Status for SSI Purposes

Consider the same-sex couple as married if we recognize the marital relationship for SSI purposes using the policies and applicable procedures set out in GN 00210.800. (See also SI 00501.150 and SI 00501.152.)

3. Processing Considerations When the Claimant Is Not a Child

For SSI claims and appeals, the claimant must meet all SSI eligibility factors as described in 20 CFR 416.202. For more information regarding 20 CFR 416.202(e), see 20 CFR 416.214.

For post-eligibility actions related to a change in marital status for SSI purposes, consider whether:

• The claimant is married for SSI purposes according to the policies set out in GN 00210.800, SI 00501.150B, and SI 00501.150C; or

• The claimant's marriage has ended or the couple have separated. See 20 CFR 416.1832, 416.1835, and 416.1806(b). Also see POMS SI 00501.150D and SI 00501.150E.

4. Processing Considerations When the Claimant Is a Child

For SSI claims and appeals, the claimant must meet all SSI eligibility factors as described in 20 CFR 416.202. For more information regarding 20 CFR 416.202(e), see 20 CFR 416.214. For an explanation of who is considered a child and the effects of being considered a child, see 20 CFR 416.1856 and 416.1851 respectively.

POMS SI 00501.010 and SI 00501.015 contain instructions for processing SSI claims, appeals, and post-eligibility actions when the SSI claimant is a child who lives either with parents of the same sex or with his or her parent and the parent's same-sex spouse (stepparent). (Note that an eligible child may have more than two parents in his or her household or only one parent in his or her household.)

• A child applying for or receiving SSI who lives either with two parents of the same sex or with his or her parent and the parent's same-sex spouse (stepparent) is presumed to share their income and resources.

• When considering a parent-child relationship for SSI deeming purposes, SSA generally accepts allegations that an individual is the child's parent or stepparent, unless there is information to the contrary.

• When the child lives with two parents of the same sex, or one parent and the parent's same-sex spouse, we will consider the income, resources, and ineligible children of both for deeming purposes.

• When the child lives with one parent and the parent's alleged same-sex spouse, we will consider the couple married if we may recognize the marital relationship for SSI purposes using the policies and applicable procedures set out in GN 00210.800.