Social Security, Divorce, and the Scope of Federal Preemption

Flannery identifies a critical ambiguity in how the Social Security Act preempts state property distribution laws in divorce proceedings. Since 1960, when the U.S. Supreme Court in Flemming v. Nestor established that Social Security beneficiaries hold a non-contractual interest (not an accrued property right) in benefits, state courts have grappled unsuccessfully with determining whether and how Congress intends Social Security to interact with state equitable property division. State courts sharply disagree over whether the Supreme Court's reasoning applies to other federal benefits contexts such as railroad retirement, ERISA benefits, life insurance, military disability benefits, and the Uniformed Services Former Spouses Protection Act. The Supreme Court's 2017 decision in Howell v. Howell, addressing military disability benefits, offers limited guidance on the scope of federal preemption in the Social Security context. Currently, state appellate courts have adopted at least seven different interpretations of federal preemption, ranging from permitting offset of marital property to total preemption of any benefit consideration in equitable property division. Flannery argues this lack of uniformity defies Congress's intent for an equitable and uniform Social Security scheme and advocates for Congressional clarification regarding the scope of federal preemption when dividing marital property upon divorce.

Topics: Family Law · Federalism · Constitutional Law

Keywords: Social Security Act · federal preemption · divorce · marital property division · Flemming v. Nestor · Howell v. Howell · equitable distribution · military disability benefits