Survivors Benefits for LGBTQ+ Couples Expanded by SSA

Jacqueline Salmon,

AARP

En español

Published October 19, 2022

With the Supreme Court’s 2015 Obergefell decision recognizing marriage equality for same-sex couples, LGBTQ spouses became entitled to the same Social Security family benefits as heterosexuals, under the same terms.

But those terms continued to freeze out many LQBTQ partners in long-term relationships who had been prevented from marrying — and thus establishing eligibility for Social Security survivor benefits upon their mate’s death — by pre-Obergefell state laws.

That changed late last year, when the Social Security Administration (SSA) adopted new rules that will qualify many more older LGBTQ people for survivor benefits, and for the late-life financial stability those payments can help provide.

“It's no exaggeration to say that this development is seismic in nature,” says Peter Renn, senior counsel at the civil rights group Lambda Legal, which filed two class-action lawsuits that led to the changes. “It will make an enormous difference in the everyday lives of thousands of same-sex survivors who were wrongfully denied the benefits for which they paid.”

Nine-month marriage rule

In most circumstances, surviving spouses are eligible for benefits based on a late spouse’s earnings if they are 60 or older and had been legally married for at least nine months when their mate died. Depending on their age, survivors can receive between 71.5 percent and 100 percent of what the deceased was entitled to get from Social Security.

Strict application of those criteria in the wake of Obergefell meant many LGBTQ survivors could not receive benefits due to state marriage laws the Supreme Court had declared unconstitutional.

“There was just a categorical decision by SSA that said, ‘Sorry, you have to be married for nine months and that it was unconstitutional in your state to do so is too bad,’ ” says William Alvarado Rivera, senior vice president for litigation for AARP Foundation, which filed amicus briefs in cases involving the length-of-marriage requirement.

Under the new policy, same-sex partners may now qualify for survivor benefits if they can show that they meet either of these criteria:

They would have been married at the time of their partner’s death if state law hadn’t prevented them from doing so.
Would have been married for a longer period before the death of a spouse if state law hadn’t prevented them from marrying sooner.

The SSA says that in weighing such claims, it will consider “all available evidence” of the circumstances that resulted in a couple being unable to marry, or to be married long enough to establish survivor benefit eligibility, before one partner died (see “What Social Security will want to know,” below).

Legal challenges

Lambda Legal filed lawsuits in 2018 challenging the SSA’s post-Obergefell application of the survivor benefit rules — one on behalf of Helen Thornton, a Washington state woman who lost her partner of 27 years to cancer in 2006, six years before their state legalized same-sex marriage, and one on behalf of Michael Ely, whose husband and partner of 43 years died seven months after their state, Arizona, recognized marriage equality.

The organization argued that the plaintiffs should not be denied survivor benefits because discriminatory state laws prevented them from marrying. Separate U.S. district courts agreed in 2020 rulings. The Trump administration challenged those decisions, but in November 2021 the SSA dropped the appeals and established criteria to weigh benefit claims from LGBTQ survivors.

The SSA is encouraging anyone who thinks they might qualify to contact the agency right away. You cannot apply for survivor benefits online, but you can call 800-772-1213 to file a claim.

You can also ask Social Security to reconsider a claim that was denied because you did not meet the marriage requirement due to past state law, in which case you may be able to collect retroactive benefits. Lambda Legal has detailed FAQs on seeking survivor benefits under the Thornton and Ely decisions.

“We believe there are likely tens of thousands of people, particularly those who were never able to marry their loved ones, who still do not currently know that they may qualify for survivor benefits,” Renn says. “The number of people who stand to benefit is staggering because of the sheer amount of time that marriage discrimination existed.”

What Social Security will want to know

Here are some of the questions the Social Security Administration might ask to determine survivor benefit eligibility for people who were prevented from marrying same-sex partners by state laws prior to the Supreme Court’s Obergefell decision.

How long were you together as a couple?
Did you own property together?
Did you share joint responsibility to care for one another?
Did you have children together, or did you raise any children together from prior relationships?
Would you have married, or married sooner, if you were not prohibited from doing so?
Was there any commitment ceremony or other attempt to have the relationship formally recognized prior to the legalization of same-sex marriage?
Did you inherit from your partner based on a will?
Did the deceased name you as a beneficiary for life insurance or retirement benefits?
Did the law of the state where your marriage ceremony occurred prohibit same-sex marriages until less than nine months before your deceased spouse’s death?
Did you choose not to marry prior to the death of your partner for reasons other than a state law prohibition on same-sex marriages?
Is there any other available evidence regarding when you would have married had state law permitted you to marry earlier?