§ H 100. Spouse Issues - Marital Status - State Law - In General


A person qualifies for Social Security spouse benefits on the basis of state law if that person
  1. was the spouse of the deceased worker under the applicable law of the state in which the worker had permanent residence at the critical time, or
  2. had the same status under applicable state law with respect to the taking of intestate personal property as a widow or widower.

The first test is met if the courts of the relevant state would find that claimant and the insured worker were validly married at the critical time. If the insured worker is still alive, that critical time is the time of application for spouse benefits. In the case of survivor's benefits, it is the time of the worker's death.

The second test, pertinent only in a limited number of states, is met if the claimant would have the same status as a spouse under the laws applied by the courts of the state in determining the devolution of intestate personal property.

Within the Past Two Years


Prior to the Supreme Court's decision in United States v. Windsor, 133 S. Ct. 2675 (2013), striking down Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7, members of same-sex marriages or civil unions recognized by state law were barred by its terms from qualifying on the basis of any of these tests. For now, section 2 of that 1996 legislation, 28 U.S.C.§ 1738C, which declares that states need not recognize same-sex marriages legally contracted elsewhere, remains in effect. The Agency has responded to Windsor and the present uncertainty about its implications for section 2 with a policy that authorizes benefits where a particular same-sex marriage is valid under the law of the state in which the worker had permanent residence at the critical time. See POMS GN 00210.000. But because of DOMA's section 2, that policy calls for simply holding applications without final action where there was a legal same-sex marriage but the state of the worker's residence does not recognize its validity.

Where state law bestows the same inheritance rights as a spouse on those in a civil union or domestic partnership such legal relationships are treated like same-sex marriages post Windsor. See POMS GN 00210.004.

Rev. 11/14

  • Supporting and Elaborating References
  • Related Sections:
    • Part 1
      § 203. Benefits Based on Family Relationship - Establishing Family Relationship
      § 220. Benefits for the Surviving Spouse of a Deceased Worker - Entitlement
      § 225. Benefits for the Surviving Divorced Spouse of a Deceased Worker
      § 250. Benefits for the Spouse of an Old-Age or Disability Benefits Recipient - Entitlement
    • Part 2
      § H 110. Spouse Issues - Marital Status - State Law - Common Law Marriage
      § H 120. Spouse Issues - Marital Status - State Law - Validity of Ceremonial Marriage
      § H 130. Spouse Issues - Marital Status - State Law - Effect of State Law Presumptions
      § H 140. Spouse Issues - Marital Status - State Law - Validity of Divorce or Annulment
      § H 150. Spouse Issues - Marital Status - State Law - "Putative Spouse" Under State Law
      § H 160. Spouse Issues - Marital Status - Focus on State Intestacy Law
      § H 200. Spouse Issues - Marital Status - Marriage Deemed Valid Under Social Security Act, Not Under State Law - In General
      § H 300. Competing Spouse Claims
      § H 600. Spouse Benefit Issues Having to do With Duration or Timing of the Marriage - In General
      § H 800. Effect of Remarriage on Spouse Benefit Entitlement
      § K 100. Determining Which State's Law to Apply
      § K 200. When State Law Has Changed, What Law Applies
      § K 300. The Effect of Actual State Court Proceedings