More same-sex couples may be eligible for Social Security survivor benefits.

Even after winning the right to marry across the U.S. more than six years ago, some same-sex couples have faced challenges obtaining certain benefits.


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More same-sex couples may be eligible for Social Security survivor benefits.

Supporters of same-sex marriage celebrated outside the Supreme Court in 2015 after a ruling enabling couples across the country to marry.Credit…Doug Mills/The New York Times

Nov. 2, 2021Updated 5:03 p.m. ET

Surviving members of same-sex couples who weren’t able to marry because it wasn’t yet legal may now be eligible for survivor benefits from Social Security.

Even after winning the right to marry across the United States more than six years ago, some same-sex couples have faced challenges obtaining certain benefits. To qualify for survivor benefits, for example, couples need to have been married for at least nine months.

But some survivors lost their spouses before meeting that threshold, even though they legalized their unions as soon as they were eligible. Others lost their partners before they were able to marry at all.

Recent developments ensure that both groups of survivors — those who were able to marry and those who were not — will have access to benefits: On Monday, the Justice Department and the Social Security Administration dropped Trump-era appeals of two class-action suits in the Ninth Circuit.

“There are a significant amount of people for whom this could make a significant difference,” said Peter Renn, counsel at Lambda Legal, an advocacy group that represented plaintiffs in the two lawsuits. “Survivor benefits are now equally available to everyone, including potentially thousands of same-sex partners who could not marry their loved ones and may have thought it was futile to apply.”

The group filed the two suits in 2018. One was filed on behalf of Helen Thornton, now 66, who tried to receive benefits on the record of Marge Brown, her partner of 27 years. But Ms. Brown died in 2006, before they were permitted to marry in Washington State, where they lived. The district court in Washington ruled in her favor, but the lawsuit’s protections were limited to people who had applied by Nov. 25, 2020, according to Mr. Renn.

Mr. Renn said that the dropped appeal opened a pathway for more surviving partners to begin applying. Neither the Social Security Administration nor the Justice Department commented after dropping the appeals.

The Social Security Administration has encouraged survivors who have been denied benefits to contact the agency, according to notices on its website. Legal experts said the agency had already begun updating its policies last month.

In the other case, Michael Ely, now 68, married his partner, James Taylor, shortly after Arizona’s same-sex marriage ban was struck down in 2014. Mr. Taylor died just six months after they married, according to legal documents. Mr. Ely was unable to collect survivor benefits on Mr. Taylor’s earnings record, the legal complaint said, even though they were partners for more than four decades and Mr. Taylor was the primary earner for the couple.

“I can finally breathe a sigh of relief that these benefits are now finally secure,” Mr. Ely said in a statement, “not only for me but for everyone else who found themselves in the same boat.”

The protections provided by these cases may also help people like Jim Obergefell, who was married for only three months. In 2015, he was at the center of the monumental Supreme Court rulingObergefell v. Hodges — that declared that the Constitution guaranteed a right to same-sex marriage, enabling couples across the country to marry even if their states had banned it. That followed a 2013 ruling, in United States v. Windsor, in which the court found that same-sex couples were entitled to federal benefits.

Mr. Obergefell, 55, said he would consider applying for survivor’s benefits when he reaches the eligible filing age, because his spouse, John Arthur — who died of A.L.S. in 2013 — may have earned slightly more than him. “I still remember the sting of being denied the minimal death benefit payout when John died,” he said, referring to the one-time lump-sum death payment of $255 from Social Security. “Not because I needed the money, but because it was a slap in the face to be told I wasn’t a valid surviving spouse.”

Surviving spouses or partners in these situations will have to illustrate to the Social Security Administration that they would have been married if the laws would have permitted it, legal experts said. The agency will also generally have to conclude that the marriage would have lasted at least nine months at the time of the partner’s death.

“It is sort of a necessary consequence of having wiped out the unconstitutional marriage restrictions that existed for so long,” said Mary L. Bonauto, civil rights director at advocacy group GLAD. “This is actually consistent with the kind of tasks that federal agencies have to do sometimes to get it right — they have to look into the individual circumstances sometimes, and this is one that really cries out for it.”

Legal experts said the agency might ask the survivor about a variety of issues. That could include whether they would have married if the laws didn’t bar same-sex unions, their living arrangements and whether they relied on each other for financial support. The agency may also ask whether they were named in one another’s wills, shared insurance policies or if they were registered as domestic partners.

As long as a deceased person worked long enough, widows and widowers generally may receive survivor benefits as early as age 60. (Disabled survivors may be eligible at age 50.) Survivors can collect on their partner’s earnings record if it is higher than their own retirement or disability benefit — or they can collect the benefits as a way to delay their own benefits, which they can collect later when they are worth more.

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