Social Security Benefits Extended to Same-Sex Partner Survivors after Years of Legal Battles

Sofia Colosimo is the Project Coordinator for the City Bar Justice Center’s Homeowner Stability and LGBT Advocacy Projects.

Over six million Americans receive survivor benefits from the Social Security Administration (SSA) each month. The surviving spouse, children, and other immediate family members of an eligible Social Security benefit recipient usually qualify for critical financial support following the recipient’s death. Those who qualify for survivor benefits are entitled to approximately 50% to 100% of their deceased family member’s payments. These benefits are especially impactful for young families with children and retired individuals living on a fixed income, for whom losing a family member heightens the risk of a dire financial emergency. Thanks to class action lawsuits filed by LGBTQ civil rights organization Lambda Legal in 2018, same-sex survivors who were previously deemed ineligible due to discriminatory laws preventing them from getting married, are now eligible to apply for SSA benefits.

Before the landmark 2015 Supreme Court case Obergefell v. Hodges, which legalized same-sex marriage nationwide, it was impossible for most LGBTQ couples to fulfill the 9-month marriage prerequisite to qualify for survivor benefits. Michael Ely, a 65-year-old gay man from Arizona, was denied spousal survivor benefits because he and his husband had only been legally married for six months at the time of his husband’s death, completely disregarding their 43-year relationship and the fact that they married as soon as it was legal in their state. Had same-sex marriage been legal in Arizona earlier, Mr. Ely would have far surpassed the requirement to access essential benefits.

Helen Thornton, a 63-year-old lesbian from Washington State, experienced a similar situation when her partner passed away in 2006. Ms. Thornton and her partner shared a 27-year relationship and raised a child together before her partner passed away from cancer. After the legalization of same-sex marriage in 2015, the SSA denied Ms. Thornton’s application for spousal survivor benefits because they never legally married and therefore did not fulfill the 9-month marriage requirement. Ms. Thornton requested that the SSA reconsider her application and provided evidence to demonstrate they had been in a committed relationship. The SSA categorically denied her application again because “at the time of [her partner’s] death in 2006, the State of Washington did not recognize same-sex marriages.”

In 2018, Lambda Legal filed two class action lawsuits, Ely v. Saul and Thorton v. Saul, on behalf of Mr. Ely and Ms. Thornton, respectively, arguing the unconstitutionality of SSA’s nine-month marriage requirement. Finally, after a push from the Biden Administration, the United States Justice Department and SSA dropped their appeals on both cases. The SSA now permits LGBTQ survivors to receive such benefits if (1) they can show they were in a committed relationship and would have married if possible or (2) they were married for less than nine months before one spouse died. Additionally, survivors who faced denials under the prior policy, are now eligible for back pay.

If you believe that you or a loved one may qualify for survivor benefits based on the new SSA policies on same-sex relationships, please contact the LGBT Advocacy Project by calling 212-382-6759. Brief advice and further assistance may be available to obtain the benefits to which you are entitled. For more information on Social Security survivor benefits, visit https://www.ssa.gov/benefits/survivors/ifyou.html.

This communication is for the general education and knowledge of our readers. Because all legal problems involve their own specific set of facts, this informational resource is not and should not be used as a substitute for independent legal advice. This informational resource also is not intended to create, and its receipt does not constitute, an attorney-client relationship. Please contact competent, independent legal counsel for an assessment of your particular legal concerns, or contact our Legal Hotline (212.626.7383 or https://www.citybarjusticecenter.org/legal-hotline/) to determine whether you qualify for assistance from the City Bar Justice Center.