SSI’s Marriage Penalty Discriminates Against Disabled Americans

This essay is an independent contribution by Hannah Orban, Eileen Sweeney Graduate Intern in Disability Policy. Opinions within are not expressly endorsed by the National Academy of Social Insurance. Please feel free to share your thoughts in the comment section below or reach out to Ariella Jailal, Program Coordinator, at ajailal@nasi.org with feedback. 

Americans with disabilities who rely on Supplemental Security Income (SSI) to meet their basic needs are being discriminated against through the program’s financial “marriage penalty.” The program levies an implicit tax on married couples receiving SSI that powerfully disincentivizes marriage and robs them of the protections this important social institution is supposed to confer.

People with disabilities are among the most economically disadvantaged cohorts in the United States. Disabled people are twice as likely as their nondisabled U.S. peers to live in poverty and three times as likely to be at risk of hunger.¹ Across all levels of education, people with disabilities have much lower rates of employment and earn lower wages on average. Black and Hispanic people with disabilities face especially high unemployment rates – 15.5% and 13.3% respectively – compared to the average U.S. rate of 5.1% in 2021. Even among those with a college education, the unemployment rate for disabled workers is more than twice as high as that of their non-disabled, college-educated peers, at 6.8% versus 2.9%.²

SSI recipients are even more marginalized. As a means- tested, cash-transfer program for children and adults with disabilities and the lowest income seniors, ³ SSI is typically the sole source of income for some of the most vulnerable Americans. The Center on Budget and Policy Priorities reports that, of the 7.7 million SSI recipients, 86% have a severe disability, and 74% are under the age of 65.⁴ Approximately one in five non-elderly adult recipients has an intellectual disability.⁵

These beneficiaries receive payments that keep them in poverty. Average SSI payments are a meagre $624 per month. The federal poverty line for 2022 is $13,590; yet, the maximum monthly SSI payment is $841, or $10,092 per year, an astonishing 26% below the poverty line. ⁶

Compounding this limitation, the Social Security Administration (SSA) deducts from these benefits many in-kind supports from family, including rent and food. It also severely restricts personal assets to no more than $2,000 for an individual or $3,000 for married couples. These draconian income and asset limits have not been changed since 1974 and 1989, respectively, and are not pegged to inflation, pushing recipients deeper into poverty each year.⁷

What is SSI’s “Marriage Penalty”?

The marriage penalty refers to the lower asset limit and benefit rate for couples who both receive SSI, compared to two individual beneficiaries. It also applies to couples who are unmarried, but whom the SSA deems as presenting to the community as married. At the maximum amount, couples receive only 1.5 times the benefit that individuals receive, and they lose 25% of the allowed household assets. These reductions constitute an implicit tax on benefits that applies only to married couples.

The impact on many SSI-receiving households – already some of the lowest-income in the country – is potentially so substantial that it pushes many to forgo marriage. This implicit tax thus denies disabled couples the legal protections that the foundational societal institution offers — allowing spouses to make critical medical choices; providing inheritance entitlements; and tax benefits – not to mention the personal and cultural significance it conveys, as the fights for marriage equality for LGBTQ people, and before them, interracial couples, reflect.

In addition to its punitive nature, I argue that the marriage penalty is discriminatory, based on the Supreme Court’s opinion in the Olmstead decision.

Justice Ginsburg’s majority opinion for Olmstead v. L.C., 1999 provided a groundbreaking interpretation of the Americans with Disabilities Act (ADA). In that case, the Court determined that in the ADA, ‘Congress described the isolation and segregation of individuals with disabilities as a serious and pervasive form of discrimination.’¹⁰ Expanding on the meaning of Olmstead, Professor Samuel Bagenstos wrote that ‘the core applications of antidiscrimination law are justified by the imperative to eliminate group-based stigma and to open opportunities for disadvantaged groups.’ After all, one of the ADA’s main actions was to establish people with disabilities as a protected class to prohibit their subordination.

Yet, disincentivizing marriage – in practice, making it impossible – for many impoverished SSI recipients arguably perpetuates a system of subordination. The program’s treatment of married couples fits Justice Ginsburg’s description of discrimination in Olmstead, when she wrote that unjustifiable segregation diminishes “the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.”¹¹ Rather than diminishing the everyday life activities of disabled individuals through confinement within an institution, as the Olmstead decision determined, SSI’s marriage penalty contributes to the subordination of people with disabilities by effectively preventing them from joining the institution of marriage, and thus seriously disrupting their pursuit of happiness.

Justice Ginsburg’s arguments in the Olmstead decision present compelling reasons against SSI’s marriage penalty. It is difficult to see how severe economic penalties for marriage could be anything other than forced social isolation and discrimination on the basis of disability. By constraining disabled Americans to choose between marriage and much-needed benefits, SSI’s marriage penalty contributes to the system of subordination that the ADA seeks to dismantle.

Hannah Orban is a Fulbright Student and Master of Public Policy candidate at the Ford School of Public Policy at the University of Michigan. Hannah is committed to improving the lived experience of people with disabilities through public policy and believes that social insurance, education, and employment are critical areas of reform. As the 2022 Eileen Sweeney Graduate Intern in Disability Policy, Hannah worked at The Century Foundation under the direction of Rebecca Vallas and Rebecca Knackstedt to advance the Disability Economic Justice Collaborative (DEJC).