Social Security Administration Takes Different View of Marital Choice of Law

Chris Geidner (my go-to source these days for post-DOMA legal developments) reports that the Social Security Administration has now developed policies for paying benefits to couples in same-sex marriages. Most interestingly, the SSA has bucked the trend in other executive agencies of paying benefits to all couples whose marriage was validly celebrated. Instead, the SSA will pay benefits only to a couple whose home state (“domicile”) recognizes their marriage.

I assume that this stems from 42 U.S.C. § 416(h)(1)(A)(i), a special statute dealing with choice of marital law for social security claims:

An applicant is the wife, husband, widow, or widower of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual is domiciled at the time such applicant files an application, or, if such insured individual is dead, the courts of the State in which he was domiciled at the time of death, or, if such insured individual is or was not so domiciled in any State, the courts of the District of Columbia, would find that such applicant and such insured individual were validly married at the time such applicant files such application or, if such insured individual is dead, at the time he died.

Two additional thoughts about this.

1. SSA’s decision may well be required by 416(h)(1)(A)(i), and if so it is hard to criticize the administration. But the decision has the unfortunate effect of ensuring that same-sex couples will be married for some federal purposes and not for others. My view is that one of the important attributes of marriage as a legal matter is the way it functions as a cross-cutting and trans-substantive. (See pp. 1415-1416 of my article.) So this is not a good thing. This should be a reminder that Congress really ought to step up and enact a choice of law rule, but I am not holding my breath.

2. The next romanette of the Social Security Act provides an alternate route to benefits:

(ii) If such courts would not find that such applicant and such insured individual were validly married at such time, such applicant shall, nevertheless be deemed to be the wife, husband, widow, or widower, as the case may be, of such insured individual if such applicant would, under the laws applied by such courts in determining the devolution of intestate personal property, have the same status with respect to the taking of such property as a wife, husband, widow, or widower of such insured individual.

I believe that in several states (remember New Jersey and Illinois?), partners/spouses in a civil union have the right to inherit under the intestacy laws. If so, then SSA probably ought to be paying benefits to couples in civil unions. But Geidner’s report doesn’t mention them. Perhaps I am missing something.