What is the Social Security Fairness Act?

With considerable fanfare, following many years of lobbying from public service unions and affected constituents, Congress passed, and President Biden signed, in the final days of his administration, the so-called Social Security Fairness Act (H.R. 82). This legislation became law on January 5, 2025, eliminating two long-standing Social Security regulations designed to prevent a “windfall” for some Social Security retirees:

  • The 1983 Windfall Elimination Provision (WEP) which reduced SS retirement benefits for those who had, in addition to their earned SS benefits, a government pension earned without contributing to the Social Security program.
  • The 1977 Government Pension Offset (GPO) which reduced or eliminated Social Security spousal or survivor benefits for those with a government pension earned without contributing to Social Security.

The original intent of these two provisions was to equalize how SS benefits were paid to all SS beneficiaries. 

The Windfall Elimination Provision (WEP)

To clarify WEP, Social Security retirement benefits are calculated from each person’s lifetime earnings record while contributing to the Social Security program, so that each person gets a SS retirement benefit which is a percentage of their average lifetime pre-retirement income. For those with a pension earned outside of (without contributing to) Social Security, the earnings on which their government pension is based are not reflected in Social Security’s earnings record, so their lifetime earnings for SS purposes appears lower than actual, resulting in a higher than expected Social Security benefit payment, i.e., a higher SS benefit because of perceived lower lifetime earnings. The 1983 Congress enacted WEP to equalize SS retirement benefits for all, thus eliminating any SS windfall enjoyed by those with a non-covered government pension. In January 2025, H.R. 82 repealed the 1983 Windfall Elimination Provision (WEP).

The Government Pension Offset (GPO) provision

To clarify the GPO, H.R.82 also repealed the Government Pension Offset, which was first enacted by the 1977 Congress to eliminate an advantage to spouses and surviving spouses who have a non-covered government pension, over other spouses and survivors who had no such government pension. For this, it’s necessary to understand how spouse and surviving spouse benefits normally work:

  • The spouse (or surviving spouse) of a person collecting SS retirement benefits is often entitled to a portion of their marital partner’s retirement benefit.  While both partners are living, a spouse can get up to 50% of their partner’s SS retirement benefit; or up to 100% if the spouse becomes a widow(er). But a spouse who also has their own Social Security retirement benefit receives only a supplemental increase to their own SS retirement benefit to make their payment equal what they are entitled to as a spouse (or surviving spouse). In other words, the spouse always gets their own SS retirement benefit first, supplemented as needed to make their payment to be equal to what they are entitled to as a spouse (or surviving spouse). Therefore, a spouse or surviving spouse always has their SS spouse or surviving spouse benefit offset by their own SS retirement benefit.

When the GPO was originally implemented in 1977, if someone had a non-covered government pension, any SS spousal or surviving spouse benefit was offset by 100% of the amount of their non-covered government pension. Thus, the original GPO worked exactly like normal Social Security spousal or survivor benefits did – i.e., their SS spouse or survivor benefit was offset by 100% of their personal SS retirement benefit or their non-covered pension. Then in 1983, Congress changed the GPO to say that the SS spouse or survivor benefit would only be offset by 2/3rds of the value of their non-covered government pension. So, the 1983 amendments to the GPO essentially gave an advantage to those with a non-covered government pension. That’s because their spousal or survivor benefit was only offset by 2/3rds of the non-covered retirement pension, versus 100% of the Social Security retirement pension for everyone else.  That all changed in January 2026 when the Social Security Fairness Act (H.R. 82) became law.  But is H.R. 82 fair?

Are these Provisions Fair?

The fairness of both WEP and GPO have been debated ad nauseum since they were each enacted about 4 decades ago.  But, as the saying goes, “fairness” is in the eye of the beholder!  Especially when it comes to the repeal of the Government Pension Offset, consider this:

As mentioned above, for someone who has earned a personal Social Security retirement benefit, any spousal or surviving spouse benefit they become eligible for is offset by the amount of their SS retirement benefit. In Social Security vernacular, this is known as the “dual entitlement rule” which stipulates that “if an individual qualifies for both their own retirement benefit and a higher spousal/widow(er) benefit, they receive their own benefit plus a reduced auxiliary benefit, totaling the higher amount.” Hold that thought for just a moment.

Real Life Examples

I recently counseled three separate federal government retirees who had not contributed to Social Security at all over their lifetime but, rather, worked all of their working years for the federal government. One of these federal retirees had lost their spouse; one was divorced and had not remarried; and the third was currently married. All were receiving generous non-covered pensions from their federal government career, while their spouse or ex-spouse had separately earned Social Security retirement benefits.  Before H.R. 82 became law, their SS spouse or survivor benefit would have been offset by a portion of their government pension. Now, due to the Social Security Fairness Act, one federal retiree became eligible for SS surviving spouse benefits equal to 100% of their deceased spouse’s SS benefit; one became eligible for SS spouse benefits as an ex-spouse and received 50% of their ex’s SS benefit,  and the third became eligible for a spousal benefit equaling 50% of her husband’s Social Security retirement benefit. They received these full SS spousal and surviving spouse amounts, in addition to receiving 100% of their federal government pension. In other words, there is no longer an offset to their SS benefits, as would be the case if they had an individual SS retirement benefit instead of a non-covered government pension. And, in two of the three cases, the federal retirees were paid SS benefits retroactive to January 2024.

A New Question

So, is it fair that a spouse or surviving spouse who has a non-covered federal pension – and who is/was married to someone with Social Security retirement – receives 100% of the Social Security spousal or surviving spouse benefit, without any offset?  And should Social Security’s dual entitlement rule now be examined for its fairness, in light of passage of H.R. 82 – The Social Security Fairness Act.  Or should Congress, instead, reevaluate the fairness of the GPO under H.R. 82?

(Authors note: Social Security’s WEP and GPO provisions (debated for nearly fifty years in Congress, the courts, and in public opinion) were implicitly judged “fair” by enactment of H.R. 82 – The Social Security Fairness Act. Consequently, however, the existing SS “dual entitlement rule” now seems unfair, because those who become entitled to Social Security spousal or surviving spouse benefits have those benefits offset by their SS retirement benefit), unlike those with a non-covered government pension who suffer no such consequence. Still, to repeal the “dual entitlement rule” would have a substantial negative impact on Social Security’s financial posture, likely hastening the program’s insolvency.  For information, H.R. 82 is estimated to cost Social Security nearly $200 billion over the next decade.)