Accounts Would Settle Gay Union Benefit Disputes

October 30, 2003

Tangents of debate on legal unions for same-sex relationships further illustrate the fairness of individual retirement accounts, specifically in regards to inheritable survivor benefits. A New York Times article reports of a surviving partner whose child was denied Social Security survivor benefits because the union was not considered legal.

"Eva Kadrey and Camille Caracappa had been a couple for five years before they decided to have a family together," writes columnist Maria Newman. "With the help of an anonymous sperm donor, Ms. Kadrey became pregnant. The couple named him Nicolaj, after Ms. Kadrey's father.

"In October 2000, Ms. Caracappa, an oncology nurse, died of a brain aneurysm at age 38. The following month, with the support and urging of Ms. Caracappa's mother, Ms. Kadrey—who had been a stay-at-home mother to her son—applied for Social Security survivor benefits for Nicolaj.

"But the Social Security Administration denied the request, saying that the child did not meet the agency's test as Ms. Caracappa's legal survivor. The two women were not legally married, as New Jersey law does not allow same-sex marriages, and Ms. Caracappa was not Nicolaj's biological mother.

"But Ms. Kadrey and her partner's family say that the two women and their son were a family, even though one not recognized by the law, and that Nicolaj is as entitled to Ms. Caracappa's Social Security benefits as any other child whose parent dies. A lawyer for Ms. Kadrey has appealed the decision to an administrative law judge for Social Security, and they are awaiting a ruling.

Meanwhile, the American Civil Liberties Union has filed a friend of the court brief on behalf of Nicolaj, saying the matter would not be in dispute if same-sex marriages were allowed in New Jersey, where the two women lived when Ms. Kadrey gave birth to Nicolaj.

John Shallman, a spokesman for the Social Security Administration in the New York regional office, said the agency looks to state laws to determine who is eligible for survivor benefits. While he would not speak of this case specifically, he said that federal regulations say that a survivor is a minor who is dependent on the deceased person, and who is considered an heir to the deceased person's property. 'We are bound by state laws on the definition of marriage and legitimate heirs.

"Ms. Kadrey, who now lives in Manhattan with her son, said that while the benefits would help her financially, she is more upset at what the denial says about her decision to raise a family with Ms. Caracappa.

'To have some government agency come in and say Camille was not his mother was very upsetting,' Ms. Kadrey said. 'He has her last name, not mine. He was baptized in the Catholic Church, because her family is Catholic, I am not. It was hurtful to everybody.'

She added, "I just want Nicolaj to get what is rightfully his."

A larger solution to these problems is to incorporate personal retirement accounts into Social Security. Personal accounts create a clear property rights for individuals in which they can bequeath contributions to their family members, regardless of state or federal legality of their union.

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