Spotlight on Marriage Penalties

Empire Justice Center October 31, 2022

A recent article in The New York Times highlighted the barriers many recipients of Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) face if they want to marry. The article features a couple that met on-line, fell in love, and became engaged, only to endlessly postpone their marriage because Lori receives Childhood Disability Benefits (CDB) based on a diagnosis at age fifteen of disabling ankylosing spondylitis.


Current laws prevent disabled individuals eligible for CDB – also known as Disabled Adult Children or  DAC – from receiving benefits if they marry. A “child” may be eligible for benefits based on the account – or earnings record – of a dead, disabled, or retired parent in several circumstances, including if able to prove disability before age 22.  A long-time recipient of SSI, for example, may become eligible for Social Security Title II benefits without an earnings record of their own when a parent dies or retires. The claimant must, however, have become disabled before age 22 and be unmarried. See 42 U.S.C. § 402(d)(1)(B); 20 C.F.R. § 404.351; POMS DI 10115.001.


What if the claimant was married but the marriage ended by divorce or annulment before the application for CDB? Under the Social Security Administration’s (SSA) byzantine rules, the claimant would be eligible. See POMS RS 00203.020. But the claimant would not be eligible if she had previously received benefits under the same wage earner’s account as, for example, a minor whose benefits terminated at age 18, became disabled before age 22, but married and divorced in between.  If, however, the marriage was annulled or void, entitlement might be possible. See POMS RS 00203.015. But if the claimant married another CDB recipient, she could be or remain eligible for CDB. See POMS RS 00203.035.


These exceptions, however, do not apply to the majority of current 1.1 million CDB recipients who, like Lori, want to get married. She and her fiancé cannot afford to lose her monthly benefits, or the Medicare coverage that is attached to her continued eligibility. Lori contacted Representative Jimmy Panetta, a Democrat in California’s 20th Congressional district. Earlier this year, he introduced the Marriage Equality for Disabled Adults Act, which includes a provision nicknamed “Lori’s Law” that would remove the marriage restriction. But according to Ayesha Elaine Lewis, a staff attorney with the Disability Rights Education and Defense Fund, while change at the federal level is “a real possibility…it will be a long and challenging journey.”


SSI recipients face similar challenges if they want to marry. Under SSI’s strict income rules, any income of their spouses would be “deemed” to them, which could make them ineligible for benefits. [See the April edition of this newsletter for SSA’s deeming guide.] And disabled SSI recipients in relationships are at risk of losing their benefits, and possibly their Medicaid, even if not married under SSI’s “holding out” provisions. Individuals are considered married for SSI purposes and thus subject to deeming rules if legally married or “living together in the same household and holding themselves out as a married couple to the community in which they live.”  See POMS SI 00501.150.


Remaining single remains the only viable option for many couples in these situations.