NC Same-Sex Couples and Social Security Benefits

A surviving spouse is eligible for Social Security survivor's benefits under certain circumstances. Until 2015, these benefits were not available to married same-sex couples.

Overview of Court Decisions Affecting Same-Sex Marriages

In the past, North Carolina and many other states did not recognize same-sex marriages. Some states lifted same-sex marriage bans, but would sometimes only do so conditionally. For example, until October 10, 2014, North Carolina did not recognize same-sex marriages for tax purposes and did not issue marriage licenses to same-sex couples. On this date, Federal U.S. District Court Judge Max O. Cogburn, Jr. overturned North Carolina's ban on same-sex marriages in a lawsuit filed by clergy members who had refused to issue marriage licenses to LGBT couples. Since then, the state has revised laws that provide spousal benefits, such as health coverage, retirement, etc. Separately and not long before, ever since United States v. Windsor on June 26, 2013, the federal government has recognized same-sex marriages for federal tax purposes. (This ruling provided married same-sex couples to issue amended tax returns as far back as 2010.)

Historic Court Ruling in 2015

Married same-sex couples in North Carolina should be aware of their federal rights. If a spouse dies, the surviving spouse might qualify for survivor's benefits. The Obama Administration included a provision in a proposed budget earlier in 2015 that alloted Social Security spousal benefits for same-sex couples. The proposed change to the Social Security Act would have applied to all states, regardless of whether or not the state banned same-sex marriages. Of course, two years after Windsor on June 19, 2015, the Supreme Court ruled that same-sex marriages will be recognized in all states, which provided Social Security spousal benefits to married couples nationwide, regardless of sex or gender identity. 

All married persons should consider items outlined by the Social Security Administration's Survivor's Benefits brochure.:

Benefits for surviving spouses married to someone who died in a work-related death.

"You should apply for survivor's benefits promptly because, in some cases, benefits will be paid from the time you apply and not from the time the worker died." On the state level, learn more about the North Carolina workers' comp death benefit statute of limitations.

How much to expect in Social Security survivor's benefits. "The benefit amount is based on the earnings of the person who died. The more the worker paid into Social Security, the greater your benefits will be. Social Security uses the deceased worker’s basic benefit amount and calculates what percentage survivors are entitled to. The percentage depends on the survivors’ ages and relationship to the worker."

Benefits for surviving divorced spouses. "If you have been divorced, your former wife or husband who is age 60 or older (50-59 if disabled) can get benefits if your marriage lasted at least 10 years. Your former spouse, however, does not have to meet the age or length of-marriage rule if he or she is caring for his/her child who is younger than age 16 or who is disabled and also entitled based on your work. The child must be your former spouse’s natural or legally adopted child."

Re-marriage affect on benefits from a former spouse. "You cannot get widow’s or widower’s benefits if you remarry before age 60. But remarriage after age 60 (or age 50 if you are disabled) will not prevent you from getting benefit payments based on your former spouse’s work. And at age 62 or older, you may get benefits based on your new spouse’s work."

Already receiving Social Security and now applying for survivor's benefits. "If you are getting benefits as a wife or husband based on your spouse’s work, when you report the death to [SSA, they] will change your payments to survivor's benefits."


Social Security benefits can be confusing to individuals who are not familiar with the system. Fortunately, one of our attorneys is a board certified specialist in Social Security Disability Benefits in North Carolina and our firm provides complimentary case evaluations. Whether you are curious about worker death benefits, disability payments, Supplemental Security Income benefits, or survivor's benefits in general, contact us with your questions and we can explain your options.