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Tuesday, September 2, 2008

SSA Benefit's for Children of Same Sex Couples

Even though the federal Defense of Marriage Act (DOMA) prevents the federal government from providing benefits to same-sex couples, the Department of Justice has determined that their children must be recognized by the Social Security Administration.

In a legal opinion sought by the acting general counsel of the Social Security Administration, the Justice Department said: "Although DOMA limits the definition of “marriage” and “spouse” for purposes of federal law, the Social Security Act does not condition eligibility for [benefits] on the existence of a marriage or on the federal rights of a spouse in the circumstances of this case; rather, eligibility turns upon the State’s recognition of a parent-child relationship, and specifically, the right to inherit as a child under state law."

The request for a legal opinion involved Karen and Monique, a lesbian coupled who had entered into a Vermont civil union in 2002, and Monique gave birth to a son, Elijah, in 2003. Under Vermont's civil union law, Karen is one of Elijah's parents and is named as "second parent" on his birth certificate, and therefore need not undertake a second-parent adoption.

When Karen became disabled in 2005, she applied for Social Security disability benefits for herself and for her son. The Social Security Administration expressed doubt about whether it could provide benefits to Elijah, based onDOMA. So SSA turned to the Justice Department for legal advice.

Deputy Assistant Attorney General Steven A. Engel from the Office of Legal Counsel signed the memorandum which states that the relationship of the two women to each other is irrelevant for purposes of the Social Security Act. The only germane question is whether Karen and Elijah have a parent-child relationship under state law; and that was determined by looking at whether Elijah would have a right to inherit from Karen if she were to die without leaving a will. The Social Security Act explicitly states that state law governing "intestate succession" determines whether there is in fact a parent-child relationship.

Under Vermont law, if a child is born to a woman who is in a civil union, the child has the right to inherit from her partner in the event she dies intestate. Engel concluded that under the Social Security Act Elijah is Karen's child and is entitled to child's insurance benefits because of her disability.

Engel specifically noted the Vermont Supreme Court's decision in a recent custody dispute between two women who were former civil union partners. That court determined that the birth mother's partner was entitled to parental visitation rights after the women ended their union and Engel found that an authoritative statement of Vermont law on Karen's parental standing.

Engel found that "by its terms," DOMA "does not apply because Elijah's eligibility is based on the Vermont Intestate Succession Statute and not on the relationship between Karen and Monique as such.

"The fact that Elijah's right of inheritance ultimately derives from Vermont's recognition of a same-sex civil union is simply immaterial under DOMA," Engel concluded.

The ruling is significant beyond both the parties and Vermont, since the reasoning would clearly apply to couples whose marriages are recognized by their home states as well as to those in civil unions and domestic partnerships in states where intestate succession rights are attached to those relationships.

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