“The Family” in Social Security: Entrenched Norms and Prospects for Transformation


PART II: Changes to Social Security since 1939



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PART II: Changes to Social Security since 1939


Over the past sixty-plus years, the Social Security program has undergone many changes. The program has expanded to include Disability Benefits and Supplemental Security Income, a form of means-tested benefits for very needy elderly and/or disabled individuals.76 In addition to these expansions, Social Security retirement, survivors’, and dependents’ benefits have also transformed in a variety of ways since 1939. Broadly, these changes fall into two types: (1) Congressional revisions and amendments to the Social Security Act in response to changing societal norms and (2) judicially-imposed changes in response to litigation that challenged gender inequality and the treatment of illegitimate children in the Act. While incremental changes have occurred within the Social Security system because of judicial and congressional responses, overall, the program operates in much the same way as it did when benefits were first distributed in 1940. Family benefits are still contingent on a recognized family relationship to a covered wage-earner and the tax scheme to fund the program still functions in, more or less, the same way.
  1. The Congressional Response to Divorce


Commentators on Social Security agree that the legislation was enacted under the presumption that families consist of “one male wage earner and one female homemaker and that if the woman is gainfully employed her earnings contribute to her support only.”77 Notions of “dependency” on a gendered basis and gendered “norms of labor-force participation,” have largely persisted in Social Security despite some neutralizing trends in society as a whole. In spite of changes in marital patterns and in workforce participation, Congress has legislated in a piecemeal fashion to bend Social Security to respond to larger societal trends. This disjointed approach to Social Security reform has resulted not just in inconsistencies and irrational distinctions between recipients but has prevented productive responses to significant changes in family life.78 Where Congress has responded to changes in the American family, it has done so largely in the context of divorce. Because of this paper’s limited scope, this section will focus on Congressional amendments that enhanced coverage of divorced spouses. Briefly, this section will also contrast the approach to divorce with longstanding children’s eligibility (in the context of adopted and stepchildren) for survivors’ and dependents’ benefits.


    1. Extending Social Security Coverage to Divorced Spouses: a Tentative Move in the Right Direction


Around the time Social Security family benefits were enacted, the “divorce rate per 1,000 married women 14 to 44 years old was 14 in 1939-41.” By 1977, that rate had risen, almost threefold, to 38 per 1,000.79 Today, an oft-cited statistic claims that 50% of American marriages end in divorce. While this statistic is inflated and reflects the public panic regarding the state of marriage, the rate of divorce is still higher than it was in the 1930s.80 Despite the divorce rate, marriage is still an immensely popular institution in the United States and fully 69% of American women and 62% of American men marry before reaching age 35. With nearly 95% of Americans marrying at some point in their lifetime, the statistical prevalence of divorce indicates that many adults (and children) will experience divorce.81

Divorce is hugely disruptive to many families for economic and personal reasons. Women, in particular, are often adversely affected by divorce. After divorce, women are more likely than men to assume primary care of children. Although some women may desire this caregiver position, taking on most of the responsibility for children often leads to a significant decline in divorced mothers’ standard of living.82 For women who adhere to traditional family norms and work as homemakers during marriage, divorce can be especially disruptive. Women, more so than men, experience inequalities stemming from caretaking and childbearing interruptions to their careers. Women also generally earn less than men.83 Because of these intersecting factors, divorced women often face particularly great barriers to economic self-sufficiency.

In 1950, Congress first responded to divorce in the Social Security context by creating benefits for divorced mothers who were caring for children of their deceased, former husbands.84 Like the benefits extended to widows with children in their care, these benefits also terminated when the youngest child reached age 18.85 This was probably adopted to take the place of alimony and child support, which would have ended when the ex-husband/father passed away. While creating these benefits was certainly a positive move for children from divorced families and for their mothers, unlike benefits for young widows, benefits for divorced caregivers did not resume once the divorced parent reached the statutory age of retirement.86 For divorced women who took their entitlement to mother’s benefits and postponed work until their children were grown, the subsequent denial of benefits at retirement would have been harsh. With so many years out of the workforce, building a sufficient individual work record for coverage under their own Social Security account might have been difficult. Ironically, by supporting and even galvanizing the choice to stay at home, Social Security benefits for widowed wives (divorced or not) may have contributed to greater poverty later in life. On the other hand, widowed and or divorced women who remarried would gain coverage from their new spouse’s account.

Fifteen years later, in 1965, Congress introduced a wife’s retirement benefit for divorced wives. This amendment created more parity between divorced and widowed wives since, at retirement age; divorced women could then receive retirement benefits based on their ex-husband’s individual benefit. Divorced wives, however, were only eligible for old-age retirement benefits on their ex-husband’s account if they met the following three conditions: (1) marriage for at least 20 years to her covered ex-husband on whose account she was claiming benefits; (2) no subsequent remarriage; and (3) the receipt of actual support or the legal right to claim spousal support from her ex-husband.87 In 1972, Congress abolished the support requirement and a 1977 amendment reduced the threshold duration of marriage requirement from 20 to 10 years. 88 In 1977, to accord with equal protection, a court decision also extended benefits to divorced husbands and current legislation reflects that gender-neutrality.89

The fact that Social Security now covers divorced spouses is undoubtedly an improvement for the thousands of American families that experience economic insecurity because of divorce. However, the limitations on benefits for divorced spouses may leave many parents and children uncovered if the marriage that forms the basis for the derivative benefits ends early. Any durational requirement for marriage is somewhat arbitrary since families that fall just short of the mark (i.e., marriage lasts for 9 years and 11 months) lose out but those marriages that last just long enough (i.e., a marriage that lasts for 10 years and 2 days) would qualify. Time limits for qualifying marriages might also unfairly penalize victims of domestic violence who leave a young marriage for “good cause” because of abuse. These families might experience even more significant barriers to finding work and becoming self-sufficient since domestic violence so often leaves victims impoverished and without resources.90 The ten-year limit, however, is particularly objectionable because the median duration of marriages ending in divorce is around seven years.91 Despite these disadvantages, a durational requirement is probably necessary unless the entire system is overhauled in favor of income sharing, which would make benefits portable at the dissolution of a marriage. Proposals for reform in the divorce context are included in Section III.

    1. Coverage under Social Security for Adopted and Stepchildren

In contrast to the lagging Congressional response to divorce, the Social Security Act has “expressly include[d] stepchildren in the category of relatives eligible for certain family benefits” since they were first enacted in 1939.92 The theory behind providing benefits to stepchildren is probably an assumption that children do in fact rely upon their stepparent’s wages when their biological parent remarries. Thus, if their stepparent were to die or retire, stepchildren have the same need for support from Social Security as biological children. However, by providing dependents’ benefits for stepchildren, the Social Security system seems to assume that such children are not getting support from their biological father. Perhaps this reflects an old norm whereby most stepfamilies were created after the death of one parent instead of after divorce. If this is the case, the provision, at least in theory, also contemplates covering kids who could draw benefits as surviving children of a deceased biological parent with additional benefits from their stepparent, should he or she die or retire.

Unlike adopted or biological children, stepchildren are subject to additional requirements in order to prove eligibility for benefits. These added burdens relate to (1) the length of the natural or adopted parent and stepparents’ marriage and (2) actual dependency.93 For instance, a marriage of nine months is required if the insured stepparent is deceased94 and the marriage between the insured stepparent and child’s natural parent must have lasted at least one year if the insured worker is disabled or retired.95 Dependency is also defined more stringently for stepchildren than natural children.96 For biological children, dependency is presumed so long as the child is not adopted by someone else.97 In contrast to this low burden and consequently infrequent question of dependency for natural children, all stepchildren must prove that they receive “at least one-half of his [or her] [support from the insured stepparent].”98

While Congress has normally tried to achieve administrative convenience in promulgating Social Security regulations, these additional rules for stepchildren often make eligibility questions quite complex and require close examination of family relationships.99 These added requirements evince a Congressional interest in extending benefits to stepchildren only in cases of true dependency.100 That said additional factors that might support a finding of dependency are routinely rejected in court proceedings in favor of administrative convenience.101 Although these requirements put stepchildren at a disadvantage, the Supreme Court has upheld the additional eligibility requirements for stepchildren on rational basis review since the provisions aim to avoid awarding “claims based on marriages contracted solely to qualify for benefits.”102

Adopted children, like stepchildren, have also been recognized under the Social Security Act since derivative benefits were first created.103 As indicated earlier, like biological children, adopted children are presumed to be dependent on their parents.104 Although adopted children are generally treated with the same level of deference as natural children, if a parent adopts a child after they begin receiving Social Security retirement or disability benefits, the Social Security Administration will review the adoption to ensure that it was not entered into solely for financial benefit.105 To qualify for benefits, an “after-adopted child” must either be the stepchild of the adoptive insured parent or the insured parent must have legally adopted the child in a court-certified proceeding.106 These requirements have sustained constitutional attack since they form the basis of a rational Congressional interest in discouraging the formation of family relationships for economic motivations.107

Congress’ reluctant approach to recognizing the need for benefits in families affected by divorce stands in contrast to the fact that Congress has always provided Social Security benefits for adopted children and stepchildren. Although the existence of these benefits suggests some inclusiveness in the program’s early years, children from blended families and adopted children are still treated with a degree of trepidation by the Social Security program. An interest in preventing fraud and limiting cost seems to cut against more liberal coverage of ”after-adopted” kids and stepchildren. This concern has persisted despite the fact that in recent years the coverage of stepchildren and adopted children has become increasingly important with the greater number of divorces and the rise in second-parent adoptions by same-sex couples. Although same-sex couples are not eligible for spousal benefits on their partner’s work record, second-parent adoption is a means for same-sex parents to obtain full Social Security coverage for their children. These almost certainly unintended consequences from covering adopted children will receive more attention in the third section of this paper.



  1. Judicially Driven Changes to Social Security Retirement and Family Benefits Programs




    1. Cases on Gender

Beginning in the 1970s, the Supreme Court began to address sex discrimination under the 5th and 14th Amendments to the Constitution.108 By extending Equal Protection and Due Process doctrines to inequalities based on sex and gender, the Court developed an intermediate standard of heightened scrutiny for evaluating whether gender-based distinctions were constitutional.109 A trio of cases that challenged particular sections in the Social Security Act on sex discrimination grounds is often highlighted in Constitutional Law textbooks. The three cases demonstrate how Equal Protection doctrine has been applied to transform aspects of the distribution of Social Security family benefits.110 In addition to these key cases, Social Security provisions are frequently interpreted in courts when the Social Security Administration or an applicant appeals an administrative law judge’s decision about benefits. Because of the abundance of cases challenging regulations, these three decisions will illustrate the limited situations in which courts have actually revised aspects of the program with regard to gender.

The first case, Weinberger v. Wiesenfeld, addressed the constitutionality of a distinction under which a widow and her dependent children could all receive survivors’ benefits based on her deceased husband’s wage record but a widower with children in his care was not eligible to personally receive benefits on the basis of his deceased wife’s earning record.111 The appellee in this case, Stephen Wiesenfeld, was widowed when his wife, the primary earner in their family, died in childbirth.112 After his wife’s death, Mr. Wiesenfeld was left with “sole responsibility for the care of their infant son.”113 He and his son applied for survivors’ benefits and his son was approved. Mr. Wiesenfeld’s application was denied because such benefits were only available to mothers.114

The Court overturned this gender-based classification upon a finding that it was based on “archaic and overbroad” generalizations.115 The Court also cited the fact that, in 1971, 41.5% of married women were working and that this gender-based dependency presumption denigrated the often-significant contributions of female wage earners to their families’ support.116 Throughout the opinion, the Court noted that the purpose of survivors’ benefits for widows with children was “to provide children deprived of one parent with the opportunity for the personal attention of the other.”117 The Court cited the Congressional record to emphasize that the provision focused, not on providing for dependent widows, but on permitting parents, whether economically needy or self-sufficient, to forgo work and care for their children.118 In the end, Mr. Wiesenfeld’s victory in the Supreme Court abolished the requirement that men must prove dependency to recover survivor’s benefits. This equalized access to survivors’ benefits on the basis of a marital relationship and without regard to gender.

As in Wiesenfeld, one year later in Califano v. Goldfarb, the Court struck down another Social Security regulation that distinguished between men and women when determining eligibility for survivors’ benefits.119 In 1950, Congressional amendments made men eligible for survivors’ and dependents’ benefits. While all wives were presumed to be dependent on their husbands, men who applied for derivative benefits were required to demonstrate economic dependency on their wives.120 In Goldfarb, a widower who was denied survivors’ benefits challenged this provision requiring a showing of dependency. Mr. Goldfarb had been in a dual-earner marriage and was denied benefits after his wife’s death because he did not receive at least one-half of his support from his wife.121 Ironically, Mr. Goldfarb had worked for the federal government prior to retirement and was exempt from participation in the Social Security system.122 By claiming an entitlement to surviving spousal benefits, he was actually claiming that he had the same right as women to “double dip” and receive Social Security benefits in addition to his federal pension.123 The Court ignored this irony and the fact that Mr. Goldfarb was clearly not “dependent” on his wife in order to award him benefits and achieve greater gender equity under the Social Security Act.

Although the opinion in Goldfarb recognized that Congress has “wide latitude to create classifications that allocate non-contractual benefits under a social welfare program,” the Court re-emphasized that even distinctions grounded in administrative convenience must meet heightened Fifth Amendment scrutiny.124 Again, instead of looking at the statute in question as discrimination in favor of surviving widows, the Court found that this provision’s unequal presumptions about dependency unconstitutionally discriminated against wage-earning and taxpaying women. Under this regulation, working women received less Social Security protection for their spouses despite paying the same amount of taxes as men.125 In Goldfarb, the Court rejected old-fashioned gender role typing and noted that the taxes paid by covered female workers actually contributed to “the fund out of which benefits would be paid to others [i.e., for the dependents of similarly situated male workers].”126 Since the Court held that the purpose of the 1939 Amendments was to “afford more adequate protection to the family as a unit,” it was, perhaps, especially consistent to extend survivors’ benefits equally to all survivors in order to protect all families.

Finally, in Califano v. Webster, the Supreme Court upheld a Social Security provision that was found to redress “society’s longstanding disparate treatment of women.”127 In 1956, Congress redefined Social Security’s statutory retirement age, as 62 for women but 65 for men.128 This gender-based distinction resulted in marginally higher benefits for women because of a policy that allows all workers to disregard their five “lowest earning” years from the calculation of their “average monthly wage” which forms the basis for a worker’s retirement benefit and any corresponding survivors’ or dependents’ benefits.129 By creating a lower retirement age for women, female workers could, in effect, exclude “three more lower earning years than a similarly situated male [worker]” and women experienced a small boost in benefits as a result.130 Although this statute discriminated on the basis of gender, the Court found that this legislation was “deliberately enacted to compensate for particular economic disabilities suffered by women.”131 In contrast to the outcomes in Wiesenfeld and Goldfarb, since this legislation benefited rather than burdened women on the basis of gender, the statute was upheld as constitutional under the Due Process Clause of the Fifth Amendment.

The three foregoing cases represent the judicially enforced distinctions between remedial (constitutional) distinctions on the basis of gender (Webster), and unconstitutional gender-based distinctions that are rooted in old-fashioned notions of gender roles and appropriate gender performance (Wiesenfeld and Goldfarb). In the cases involving survivors’ benefits, the Court looked to the legislative intent behind the 1939 Amendments and concluded that the addition of family benefits was not based on dependency but on the need for better family protection.132 While all of the cases recognized that Congress had broad discretion to legislate in the area of social insurance, the Court emphasized the Constitution’s applicability to social welfare programs and affirmed that mere administrative convenience was not enough to justify discriminatory legislation.133 In Wiesenfeld and Goldfarb the Court also noted that requiring proof of dependency actually increased administrative costs of the Social Security system and contradicted stated government goals to achieve “administrative convenience” by differentiating on the basis of gender.

Viewed in isolation, these cases might indicate that the Social Security system has responded effectively, albeit through costly litigation, to problems of gender inequity. While these cases are significant to the administration of the Social Security program, the changes that actually resulted from the cases were relatively minimal. Certain provisions were altered in the direction of gender-neutrality but the broader structure of the Social Security system was by no means transformed. In fact, the cases themselves may obscure the reality behind the opinions, which still finds women at a disadvantage under Social Security in certain ways.134 For example, the policies surrounding division of benefits at divorce disfavor women who are more likely to experience adverse economic consequences from divorce.135 Also, these cases did not alter the situation as faced by many families that do not fit the traditional marriage model.

    1. Cases on Illegitimacy

In addition to these Equal Protection cases involving gender discrimination, the Court also decided important cases regarding the rights of illegitimate children to recover Social Security benefits in the 1970s. When family benefits were first enacted in 1939, illegitimate children were acknowledged to the extent that they could receive child’s benefits if they were living with and/or dependent upon their biological, insured father.136 This additional burden of proof for illegitimate children came under attack in a case that reached the Supreme Court called Jimenez v. Weinberger.137

Ramon Jimenez, the insured worker in Jimenez was separated from his wife when he began living with Elizabeth Hernandez. Jimenez and Hernandez never married but they had three children together. Their children lived with Jimenez their whole life and Jimenez became their sole caretaker when their mother left the household after the birth of their third child.138 In 1968, five years after Jimenez became entitled to disability benefits, he applied for child’s insurance benefits on behalf of his three kids.139 While his eldest daughter was approved for benefits since she was born prior to Jimenez’ entitlement to disability benefits, the two younger children were denied benefits on the grounds that “neither child’s paternity had been acknowledged or affirmed through evidence of domicile and support before the onset of their father’s disability.”140 Jimenez challenged this determination because it was based on the “‘suspect classification’ of illegitimacy.”141 The Court had previously used the Equal Protection Clause to strike down laws that discriminated on the status of birth since illegitimacy was found to be immutable from the perspective of a child who had no control over the circumstances of their birth and because it is a status that “subjects… children to a stigma of inferiority.”142

Rejecting arguments that the classification was permissible because it had a “reasonable basis,” the Court struck down differential treatment of nonmarital children as a violation of the Equal Protection Clause of the Fifth Amendment.143 The Court based this holding in the purpose of the Act, which was grounded in providing support for “dependents of a wage earner who has lost his earning power.”144 The Court also recognized the dilemma faced by illegitimate kids who were left with no other statutory method of proving dependency and their right to benefits.

In contrast to the Jimenez holding that affirmed illegitimate children’s eligibility for children’s benefits, at least when their relationship to the insured parent was openly acknowledged and affirmed, Califano v. Boles refused to extend mother’s benefits to a never-married mother of an illegitimate child.145 Norman J. Boles, an illegitimate child, was entitled to child’s benefits when his biological father died since his dad had acknowledged his paternity before his death.146 Norman’s mother, Nancy Gonzalez, also applied for mother’s insurance benefits when Norman’s dad, her ex-boyfriend, died. Her application was denied. Reviewing this denial, the District Court read Wiesenfeld to hold that mother’s insurance benefits are primarily for the child and that the “pertinent discrimination in this case… was [at its root] discrimination against illegitimate children.”147 The Supreme Court reversed this holding. A narrow majority of the Court concluded that the purpose of the marital requirement was to “limit the category of beneficiaries to those who actually suffer economic dislocation [i.e., who are actually dependent] upon the death of a wage earner.”148 Although this view departed dramatically from precedent by disregarding the strength of the “family support” rationale, the Court held that denying mother’s insurance benefits to a woman who never married the father of her child bore a “rational relation” to permissible Government purposes.149

The Court’s logic in Boles is in keeping with the preference for bright line eligibility rules, such as rules based on marriage. Had the Court awarded benefits to Nancy Gonzalez, a potentially large number of cases from unwed mothers might have reached the courts and required particularized determination. The Court’s decision is also consistent with the fact that providing child’s benefits to Norman theoretically replaced the child support he received, or was entitled to receive, while his father was alive. Unlike her child, as an unmarried mother, Ms. Gonzalez would not have had a legal claim to the support of her ex-boyfriend. Perhaps this decision is justified because holding otherwise would give Ms. Gonzalez an unexpected or unjustified windfall when her ex-boyfriend died. On the other hand, the opinion’s insistence about the program extending benefits only to truly needy parents is only partially true since even independently wealthy widowed parents are entitled to receive caregiving benefits when their insured spouse dies. Given this example of divergence from awarding benefits only to the “truly needy” would support the caregiving rationale as the most logically consistent basis for providing these parenting benefits.

This glimpse into the case law surrounding illegitimacy illustrates the Court’s foresight and relatively flexible response to Social Security regulations, at least as compared to Congressional responses to nontraditional families. As in the divorce context, the Court liberalized the rules surrounding the eligibility of illegitimate children but did not (and could not) go so far as to rewrite the rules to provide comprehensive coverage for unmarried parents or couples. Instead, the Court retained marriage as the marker for eligibility for adults and created a relatively narrow exception for non-marital children who could demonstrate actual dependency.

The remaining gaps in Social Security coverage for unmarried families, married families that break up, and families that deviate from the traditional model will be discussed in more detail in Section III. Although Section III will offer some suggestions for more systemic policy changes, it is unlikely that judicial opinions will ever trail blaze in the area of Social Security reform. Since courts must defer to other governmental branches and should respect precedent, more revolutionary and systemic change in the area of social insurance will probably have to come from elsewhere.






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