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


Cohabitants: Problems for Partners and Children



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Cohabitants: Problems for Partners and Children



Anne and Mariko have been in a relationship for years. Both women are raising Jamie, Mariko’s daughter from a prior, unmarried relationship. Anne works as a chef and Mariko is an accountant. Although these women support each other and their daughter and both pay Social Security taxes on their earnings, their Social Security contributions will not benefit their partner in the event of their death or disability. In addition to the unavailability of spousal benefits for either Mariko or Anne, Jamie will not qualify as Anne’s dependent for survivors’ benefits. Simply because of the fact that their relationship is not sanctioned by marriage, Anne, Mariko, and Jamie are ineligible for many family Social Security benefits.
Since the 1930s, marriage, while still extremely prevalent, has become increasingly uncommon in the United States. More couples are choosing to live together outside of marriage and increasing numbers of same-sex couples live together without the benefit of state-sanctioned marriage. Statistics about cohabitation are difficult to pin down since data has only recently begun to be collected. For instance, same-sex couples were counted for the first time in the 2000 census. In that census, more than 3 million gays and lesbians identified themselves as members of same-sex couples.176 Same-sex couples were identified in 99.3% of all U.S. counties in the 2000 census.177 Like same-sex households, the number of unmarried partner households has also risen significantly in recent years and rose by 72% in the 1990s.178 While for some unmarried partners, cohabitation is a steppingstone to marriage, more and more couples are choosing to live together outside of marriage permanently. Although more couples are choosing to live as long-term cohabitants, such relationships in the United States usually break up or end in marriage within five years. For this reason, the exclusion of unmarried partners is primarily a problem for same-sex couples.179

Both couples who choose to build their lives together outside of marriage and same-sex couples who are not legally permitted to marry lose Social Security benefits that are extended to their married peers. Although decisions not to marry carry perilous Social Security consequences for younger couples, senior citizens may choose to cohabitate in order to retain Social Security or other retirement benefits.180 For example, if a widowed woman were eligible to receive survivors’ benefits on her late husband’s account, she may choose not to marry her older partner so they can both retain higher Social Security benefits. Regardless of the reasons for cohabitation, many unmarried couples and their children receive less in Social Security family benefits than similarly situated married couples. Federal policies and laws that favor marriage and define it to exclude same-sex unions have stunted and curtailed policy development that would provide cohabitants with full Social Security coverage.


  1. Policy Proposals for Social Security Reform to Better Assist All Families

Although recognition by analysts and commentators that Social Security prefers married, single-earner couples is common, proposals addressing unfairness to unmarried couples and nonmarital families are not. The limited attention to the plight of unmarried families in the Social Security context probably stems from the current legal and political barriers to their equal recognition and their relatively recent attraction of attention and concern. Scholars have devised a variety of proposals to create more equality between single-earner and dual-earner couples. Yet for a number of reasons, including resistance in the political process and judicial deference to legislative decision-making, suggestions to fully overhaul the family benefits system have not been popular. This section will briefly describe the barriers to reform and will assess prominent recommendations for change to bring about more equity for all families. In the end, I will posit two ways to reform Social Security, which might achieve more equal outcomes for the nonmarital families that currently lose out in the Social Security family benefits system and receive little attention from other proposals for change.


1. Suggestions for Social Security Reform and Obstacles to Implementation

One type of proposal, the “family-focused” proposal, has concentrated on creating more equality for all married couples. While still operating with marriages in mind, these plans have also aimed to address the problems that families face at divorce. A second type of proposal for reform has focused instead on the fiscal soundness of the program. Both of these proposals have social implications but the proposals for privatization seem more removed from family policy. Nonetheless, even these fiscally-oriented suggestions would have a significant impact on families and the normative meaning of “the family.” In fact, privatization proposals have the potential to essentially disregard marriage as a required eligibility factor for family benefits. As such, privatization, in contrast to “family-focused” proposals for reform, might include cohabitants and same-sex couples in its vision of a revamped Social Security system.


a. “Earnings Sharing” – A Family-Focused Proposal

One proposed method for Social Security reform that has received much scholarly attention is “earnings sharing.” Earnings sharing is “family-focused” in my terminology because it aims to equalize treatment of all families formed by marriage. Earnings sharing would “eliminate the current Social Security system’s spouse and surviving spouse benefits. In place of today’s system, each spouse in a married couple would be credited with one-half of the couple’s combined earnings during marriage.”181 Effectively, the present system of basing benefits on an earner’s average monthly income would be replaced with a basic community property model for dividing Social Security benefits. Earnings sharing would probably improve the situation of working (dual-earner) families as compared to traditional (single-earner) families and would ameliorate the consequences of divorce for stay-at-home spouses and secondary earners.

Recall, for example, Johnny and Gina (the dual-earner family) and Ruth and Peter (the single-earner family). By crediting each partner in these couples with half of their total wages, each spouse in these sample families would be credited with $30,000 worth of earnings for every year the couples earned $60,000.182 This would wipe away the extra benefit for single-earner couples and the system would finally adopt an essentially neutral stance “with respect to the way married couples decide to share breadwinning and homemaking activities.”183 In addition to this newfound equivalence in tax contribution and benefits received, earnings sharing would make benefits fully portable in the event of divorce. No matter the length of marriage or subsequent marital decisions, each spouse in a divorced couple would be entitled to their half of the community’s Social Security contributions made during their former marriage.184 By giving marital partners an automatic half-share of the community’s Social Security earnings, earnings sharing would eliminate the need for the 10-year marriage rule for divorced spouses. This might particularly benefit victims of domestic violence who would share in the community’s benefits even if a marriage broke up before the 10-year mark.185 In spite of these advantages for divorced spouses, under earnings sharing, protection for widows who receive survivors’ benefits could decrease.186 For instance, whereas a surviving spouse at retirement age under the current system receives 100% of the insured spouse’s benefit or 100% of her own benefit, a surviving spouse’s benefit could fall to one-half of the couple’s total pre-death benefit under earnings sharing. This significant income drop could make widow’s financial circumstances considerably less secure. Additionally, it seems possible that benefits for divorced spouses who were unable to re-enter the workforce and build their own Social Security account might also decline since under earnings sharing they would not reap the benefit of their spouses’ post-divorce earnings. Instead, a divorced spouse would only be able to claim their half of what the community earned during the duration of the marriage.

Earnings sharing would effect positive changes toward equity and adequacy for all married couples. Nevertheless, there are significant disadvantages to the earnings sharing system and major impediments stand in the way of its adoption. While a shift to earnings sharing would implicitly value the household work of a spouse who stayed home, earnings sharing would not value all household work equally. For instance, regardless of how household work was actually divided between a couple, couples with nearly equal incomes would get essentially no “credit” for housework.187 Housework done by partners in a household like Gina and Johnny, where the couples earn the same salaries, would be invisible for purposes of Social Security benefits. On the other hand, the stay-at-home wife of an executive earning $100,000 per year would have her housework valued at a salary of $50,000.188 More importantly, earnings sharing would retain the bias in favor of married couples. Under earnings sharing, single people would have the same rate of return on their Social Security taxes as married couples who earned the same amount. Because single people do not benefit from the same economies of scale as couples, this system would still leave singles at a disadvantage as compared with married individuals.189 Finally, a shift to earnings sharing would improve the Social Security income of dual-earner families but would reduce the Social Security benefits to single-earner families. This appears to be the most salient objection to the plan and would probably be the most significant quarter from which objection to earnings sharing would be raised. Instead of pointing out that earnings sharing does not go far enough, single-earner families would be able to point to losses actually incurred because of earnings sharing. Since traditional families would lose under an earnings-sharing regime, implementation of earnings sharing might face political opposition from traditional families and those who favor them.

In addition to these disadvantages, earnings sharing adopts a very particular “partnership” theory of marriage, which would conflict with established family law in certain states. Since earnings sharing would divide benefits equally in the case of divorce, adopting an earnings-sharing approach would result in a type of divorce reform.190 Federal preemption doctrine may also prevent states from dividing Social Security benefits in state divorce proceedings.191 Finally, since earnings sharing would mandate a sort of community property for “federally-created marital property,” the imposition of federal law in state family law cases might be met with resistance from state judges and politicians and might violate principles of federalism.192 In light of these problems inherent in the earnings sharing model, Professor Goodwin Liu and other scholars have suggested adopting a more radical approach that would value “non-wage work on its own terms.”193 Notable proposals, like Nancy Staudt’s, would tax housework so homemakers can build Social Security accounts.194 Housework could ostensibly be valued on an economic model of replacement wages (i.e., what it would cost to purchase the services of a homemaker on the market). Unfortunately, these proposals seem fraught with so many administrative complexities as to be impossible to implement. Given these concerns, earnings sharing is not likely to be enacted anytime soon.195

In contrast to these ideas, which would completely override today’s system of Social Security family benefits, other family-focused suggestions for reform would simply alter the percentage of a spousal benefit. For example, Robert Ball, Commissioner of Social Security from 1962-73, suggested alleviating the bias against single persons and working couples by reducing the spousal benefit of a nonworking spouse from 50% to one-third of the worker’s primary benefit.196 Although spousal benefits would have dropped, benefits for a single worker would have increased by 14 percent.197 That change in both directions would neutralize the effect of the percentage alteration and leave married couples in the same situation. While this proposal would have equalized the situation of working couples vis-à-vis traditional couples without making any couples suffer loss, the cost of the proposed change probably hindered the proposal’s adoption.198

Instead of applying percentage reductions and increases to spousal and individual benefits, another approach for reform would be to create parity between identically situated single and dual earner couples. Taking Gina and Johnny and Ruth and Peter as examples, this approach would create the fiction that Gina and Johnny were in a single earner family. Under the current system, at retirement Ruth and Peter will receive Peter’s full benefit (for ease of calculation, let’s say $700) plus half of that benefit ($350) for Ruth as a spousal share for a total of $1050 per month. Because of their lower wages, we’ll assume Gina and Johnny would each receive $450 for a total of $900 per month. If Gina and Johnny’ earnings were considered together, as though one worker had earned $60,000 per year, they would receive the same amount as Ruth and Peter instead of $150 less per month.199 While this proposal would be easy to implement without applying a percentage across the board, it would also increase the cost of the program. Moreover, it would not address the fact that single earners would still receive proportionately less in benefits for their Social Security tax contributions.

  1. Proposals for Privatization and their Unarticulated Vision of “The Family”

In 2002, President George W. Bush proposed the partial privatization of the Social Security system. If adopted, in a privatized system individual workers would contribute part of their Social Security taxes into individual accounts.200 Although an individual might be able to purchase insurance on their account for a spouse or child, privatizing the system would abolish the current system of spousal benefits. By eliminating benefits for married partners, privatization could give individuals more freedom to choose how to allocate their benefits. In other words, in place of federally mandated decisions about which family members qualify for dependents’ and survivors’ benefits, individual workers might get to name their dependents. This would open the door for same-sex couples and cohabitants to choose how best to recognize and accommodate their families. Affording workers this type of autonomy would also end the current preference for single-earner, traditional families.

Although this is not its intent, privatization would make a very significant impact on spousal benefits. There is currently no way for unmarried couples (like Mariko and Anne, for example) to provide spousal benefits for one another. Same-sex couples are barred from marriage for all federal purposes and opposite-sex couples are not allowed to name a designated beneficiary (or pseudo-spouse) to receive their Social Security benefits. The rules for children differ and are already more accommodating of unmarried relationships since children of unmarried couples can currently qualify for children’s insurance benefits if they can prove that they qualify for benefits as an illegitimate child or if their non-biological parent adopts them. While adoption is an option for unmarried couples to gain coverage for their children, the cost of adoption may be prohibitive for many families.

In any event, the potentially positive outcome that privatization would have on unmarried couples has not been championed by privatization’s proponents. On the contrary, the effects of privatization that would undermine “the (traditional) family” seem to have escaped the attention of political conservatives who advocate privatization for fiscal reasons.201 Without delving into the financial pros and cons of privatizing the system, most people are quick to recognize the downfalls of privatization.202 In chief, privatization would do very little to assist people who cannot save adequately for retirement and who end up impoverished in their old age. Privatization would likely have an especially detrimental effect on low-wage workers since contributions to individual accounts would be diminished by administration and annuitization costs, accounts of poorer workers would be smaller and would realize lower rates of return than the accounts of wealthier workers, and low-wage workers generally have less ability to purchase sound investment advice.203

Despite this negative side of privatization, it does seem like the most feasible option for extending Social Security to all people regardless of marital status.204 While it might seem like a positive move for cohabitants and same-sex couples, privatization would actually knock all families down to a lower level of protection. It is important to keep that reality in mind since privatization does seem to be a politically tantalizing option for family equality in the near future.

  1. A New Inclusive Vision of Social Security Family Benefits


Proposals to impose earnings sharing or privatize the Social Security system sit at two extremes: on the one hand, the benefits of earnings sharing are confined to families formed by marriage; on the other hand, a radical version of privatization would obliterate protection for any families. A better, yet idealistic, solution might lie somewhere between these two poles. How can the Social Security system achieve its stated purpose of “affording more adequate protection to the family as a unit?”205 Could the system actually start moving in the direction of recognizing more nonmarital relationships, as it has for illegitimate children? One way to explore the possibilities for such reform is to compare Social Security with other public assistance programs. Examining programs like welfare, food stamps, and public housing will illuminate potential avenues for creating a more inclusive program that would better support all families.

Comparing Social Security to Other Public Programs

Broadly speaking, public programs in the United States provide two types of assistance: cash aid and non-cash goods, such as food or housing. While cash aid programs are generally quite stringent in their administration and guidelines for eligibility, goods programs are more flexible. As a result, programs that distribute goods typically adopt broader conceptions of the family than programs that pay cash.

For example, the federal Food Stamps Program distributes benefits on the basis of a “household” relationship, which is defined by people who live together and purchase and prepare food together.206 In place of requiring state-sanctioned marriage or blood relationships, the Food Stamps program will provide cash earmarked only for particular types of food purchases to needy households headed by married couples, same-sex partners, cohabitants, and unwed parents alike. This functional approach, which is also used by public housing programs, is more accepting of untraditional families than Social Security. The Food Stamps program also has unlimited scope as an uncapped program, which might explain part of its liberal approach to disbursing benefits. On the other hand, Food Stamps only disburses benefits to needy households. Perhaps because the families Food Stamps supports are so poor, the legislators and policymakers who created the program begrudgingly accepted the fact that all qualified recipients truly needed the food. Additionally, Food Stamps benefits are circumscribed in that the only thing a recipient can purchase with their Food Stamps is food.207 Since the benefits are so restricted, there may be fewer perceived problems with giving poor (read: irresponsible) people food than giving poor people cash. In other words, policymakers can afford to be less moralistic about defining eligibility for food programs because it is easier to dole out food than cash, which is more likely to be spent in “unacceptable” ways.

In contrast to goods programs, cash benefits (e.g., Social Security and welfare) tend to define “the family” in the most traditional ways. To qualify for Social Security children’s benefits, a relationship between an insured parent and child must be created biologically (natural children), by marriage (stepchildren), or by an approved adoption. For spousal benefits of any kind, the relationship to the insured spouse must be founded on marriage. Generally, to qualify for welfare there must also be evidence of a parent-child relationship (biological or adopted). While welfare programs ordinarily cover unmarried parents and their children, “the family” and even marriage still plays a key part in determining eligibility. Welfare recipients are sometimes penalized for having additional children outside of marriage and may be required to participate in programs that encourage marriage.208

Although programs that distribute cash tend to define the family in more traditional ways than goods programs, recipients of Social Security benefits or welfare may spend their benefits in whatever way they choose. Despite the flexible nature of cash benefits, welfare and the family Social Security benefits created in 1939 have always been two wildly different systems of public assistance for single mothers. Social Security benefits allowed qualified widowed mothers with children to rely on an often-sizeable benefit while caring for children under the age of 18 regardless of their financial condition. Single mothers, who were divorced, deserted, or had their children outside of marriage were left to rely on the moralizing welfare system. In stark contrast to widows on Social Security, welfare recipients had to (and still must) meet stringent eligibility standards and prove neediness.

Since Social Security’s inception the differences between welfare and Social Security have become even clearer. As Social Security’s vision of the family gradually became more liberal through judicial and legislative change, in recent years welfare has grown much more conservative. In 1996, welfare reform replaced Aid to Families with Dependent Children (AFDC) with state control to disburse federal Temporary Assistance to Needy Families (TANF) grants. The move from AFDC to TANF established lifetime limits on receipt of benefits, gave states the option to impose family maximums on families receiving welfare benefits, and required that all recipients begin work or job training after two years on aid.209 Mothers on TANF are now almost universally required to work despite having young children in their care. Women on welfare also face a five-year lifetime limit on their receipt of aid. Even child support benefits are limited to many welfare families who often see only a $50 “pass-through” of the support a father pays. Frequently, the rest of the child support payment goes to the government to defray the cost of the welfare grant.210 By contrast, single mothers who receive Social Security, whether widowed or divorced, can draw a parent’s benefit for as many as 16 years and benefits for their children for even longer.211 Mothers receiving Social Security are not required to work and when they do work, they face better incentives than women receiving TANF.212

In essence, by requiring TANF recipients to work but permitting caretaking parents who collect Social Security to stay out of the workforce, welfare reform has partially inverted the welfare system. While the expectation that “most women would participate in the labor force gradually came to apply to women on welfare,” somehow parents receiving caretaker’s Social Security benefits escaped this mandate.213 If welfare mothers were once considered lazy and irresponsible, strict new welfare-to-work requirements have ended the illusion that receiving welfare is easy or that it requires no work. Why hasn’t the stigma attached to receiving welfare begun to dissipate in light of this fact? Is it sympathy for a widowed spouse’s loss that insulates Social Security recipients from the moralizing critiques directed at single mothers on welfare? Might the fiction that the deceased spouse has purchased “life insurance” by contributing to Social Security form the basis for this disparate treatment? Perhaps the basis for this distinction is as simple as the fact that a widowed wife relied on her husband while a single mother “chose” to have a child without other support. Even if the rationale for maintaining this dual-system is more inoffensive, welfare reform has made Social Security an even more preferable benefit in comparison to other public assistance programs.

With these other programs in mind, it appears that Social Security, without any means test, sits at the top of a benefits hierarchy since the program generally pays the highest benefits to the people who may need the benefits the least. While Food Stamps and public housing may be more accessible to nontraditional families than Social Security family benefits, the fact that benefits are so meager and are available only to the very low-income make Food Stamps and public housing less desirable. Welfare (TANF) might be at the very bottom of the hierarchy. Although TANF resembles Social Security by distributing cash benefits, the program is available only to the poorest families. It also subjects recipients to demanding restrictions that are completely absent for Social Security recipients. How can Social Security reach more nontraditional families (like public housing and food stamps) without losing its relatively revered status as an earned-benefit? Is there a way for Social Security to widen its eligibility standards by broadening its definition of the family without inheriting the stigma that is currently reserved for other programs? Out of fairness, Social Security family benefits should extend to cover all families that have a wage earner paying Social Security taxes. Any change to Social Security should retain the feature of the program that indexes benefits according to income. This feature makes Social Security an altogether different kind of program, insulates it from “welfare reform” type attacks, and also permits the program to provide income to middle and low-income individuals who might not qualify for welfare but still need Social Security benefits. In a radical vein, Social Security could scrap defining “the family” along marital lines and adopt eligibility standards founded on the notion of a “household,” like Food Stamps. A more practically feasible proposal might take a two-step approach to insuring currently uncovered children of nonmarital relationships and extending caregivers’ benefits to the “informal” (non-adoptive and non-biological) parents of these children. Each of these options will be considered in turn.214


Thinking Outside the Marriage Box: Insuring “Households”

Converting Social Security from a family-based to a household-based program would increase the flexibility of the program and would reap significant advantages for untraditional families. The household model, for example, would cover children of unmarried partners who had not been adopted by their non-biological parent if that parent retired or experienced death or disability. All unmarried partners would also be able to provide their partners with retirement and survivors’ benefits.215 Other dependents in the household, say a niece or nephew, or a disabled sibling, might also qualify for benefits under the household scheme. Since Social Security is indexed on an individual’s labor input, family benefits, even if based on a household-notion would have to retain maximum family grants. This might help prevent formation of large “households” for economic profit. The household model could also adopt earnings sharing so that wage earners in a household would share equally in what was earned during the household relationship and all earnings and benefits would be fully portable if a household relationship dissolved.

While the changes that would increase coverage for family members seem positive, problems might arise in defining the administrative scope of the “household” model. For example, the household model would have to reckon with how to draw the line between family-like relationships and more informal relationships, such as roommate living situations. Should all members of a household automatically be deemed mutually dependent upon anyone living in the house who also earns income? Such a rule would undoubtedly go too far since it would include people who live together but in no way depend upon the other person for income or support. The line here could be difficult to draw. College roommates, who may live together for only a year and earn spending money from part-time jobs might “share a household” but are in no way financially dependent on one another. Two older single women who have lived together for a decade, own a home together, and fully support each other would present a more compelling case for inclusion in the “household” definition despite their lack of intimacy. Perhaps marriage or domestic partnership, or caring for a child together, could create a presumption of dependency that would qualify any spouse or partner for spousal benefits and any children in the home for child’s benefits. Unmarried partners without children could be required to prove dependency in the same way that stepchildren are required to demonstrate dependency. This solution would still incentivize marriage and might appeal to people who want to retain preferences for marriage.

The household model would encounter another significant problem when dealing with dissolution of marriages and more informal relationships. As a legal contract, marriage has an easily defined start and ending. Households, by contrast, are more informal. Thus, defining their dissolution could prove administratively taxing. Finally, a “household” vision of Social Security could open benefits up to polygamous households, which could also incite political opposition.

This abbreviated discussion of transforming Social Security from a family to a household benefit has highlighted a few of the difficulties that would arise if it were enacted. Given the scope of the problems and the potential that such a proposal would increase the cost of administering the program, the “household” proposal is unfortunately far-fetched. However, a move in this direction would take great strides in equalizing access to Social Security for all of today’s varied family forms.216



A Two-Step Strategy to Insuring Nontraditional Families

Changing Social Security for the better does not require shaking it to its foundations, however. Relatively minor legislative changes could bringparents and children who are currently uninsured under the Social Security umbrella. The following proposal would extend benefits to children who are raised by a non-biological, non-adoptive, and non-step- parent but who depend on their “informal” parent for support. The proposal would also provide these informal parents with caretaking benefits if their partner (the child’s parent) were to die. This proposal would stop short of extending spousal or survivor’s benefits to unmarried partners in hopes that same-sex marriage would one day be legalized to provide the same effect and because earning gaps between secondary and primary earners are likely to decline in future years.

The Court has consistently framed the purpose of the Social Security Act as a state-sponsored method of family protection. When the Court has refused to extend benefits, it has typically grounded their decision in the fact that “Congress sought to limit the category of beneficiaries to those who actually suffer economic dislocation upon the death of a wage earner.”217 While the Court upholds the marriage-based aspects of Social Security legislation on rational basis review, the current system of family benefits is both over-inclusive and underinclusive. As earlier sections of this paper have demonstrated, by often using marriage as a proxy for eligibility and dependency, the system sometimes overcompensates certain families at the expense of others and even pays out money to people who could get by without it. Despite its unfairness, this over-inclusiveness results from the “earned” aspect of the program, which is probably responsible for Social Security’s enduring success. As an earned benefit, Social Security insurance is insulated from the stigma that is directed at means-tested welfare programs. Even so, the program is also underinclusive because it does not cover everyone who might be dependent on an insured wage earner. Notably, unmarried partners, some children of unmarried partners, and other potential dependents are left out of family insurance coverage. With these uncovered individuals in mind, it is clear that Social Security is not living up to its stated goal of “protecting the family unit.”

To protect children living in families not founded on marriage, the Social Security program could adopt the stepchild eligibility test for children who hope to receive benefits from informal parents. This initial change would require such children to prove that they were “living with” the informal parent and “dependent” upon the informal parent for support. Such a change would create a class of “de facto stepchildren” who although never formally adopted, were nevertheless parented and supported by their informal parent (the primary beneficiary). Including these children would be politically attractive for a couple of reasons. Chiefly, this would probably extend to relatively few children and, as a result, would probably result in little extra cost or administrative burden. After all, the change would merely apply a test that the Social Security Administration is already familiar with using for stepchildren. Additionally, this change would provide income to children who would benefit from the money and who cannot be blamed for the decisions of their parents. This “innocence” rationale might make such a proposal attractive to policymakers and legislators.

Next, a statute could be adopted to award parenting benefits to the informal or “de facto” parents who cared for their non-adopted, non-biological, and non-step child if the biological or adopted parent of the child passed away. Such a change would benefit same-sex couples who have been unable to adopt children that one partner brought in from a prior relationship. It would also benefit blended families where non-biological parents are prevented from adopting the children of their partner or spouse. This statute could also be used to award parenting benefits to parents of illegitimate children who qualified for child’s benefits when, for example, their biological parent died. Such a statute would overturn Boles, might greatly improve the economic status of many single parents (primarily mothers), and could move families off of welfare.

Finally, this proposal would not extend benefits to unmarried partners. A statutory proposal to provide same-sex couples and cohabitants with equal access is likely to meet with major opposition given the current hostility to recognizing same-sex relationships on a federal level. Since spousal benefits will be extended to same-sex relationships if same-sex marriage is legalized, it would probably be prudent to wait for that development instead of pushing for unpopular legislative change now. Additionally, if wage disparities between men and women shrink, fewer married women will qualify for spousal benefits in the future. It would make sense to refrain from enacting more marital privileges even as the marriage benefit is waning for many modern couples.218 All these changes would stop short of extending benefits to affinal relatives (like siblings who receive care from adult siblings and would receive coverage under the household proposal) or friends, but would take important steps to insuring families that are currently given short shrift from the marriage-focused Social Security system. The legislative changes would probably be upheld in Court since they would reflect Congress’ rational choice to “concentrate limited funds where the need is likely to be greatest.”219 By applying a dependency test to “de facto” stepchildren the new changes would be especially apt to award benefits only to those who needed them. Finally, the relatively limited scope of these changes might make them appealing to legislators who want to avoid incurring greater Social Security costs.





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