On June 26, 2015, same-sex marriage became the law of the land when the Supreme Court of the United States struck down the anti-same-sex marriage laws that were still on the books in 14 states across the country in a decision that was widely seen as a major step forward in the LGBTQ equality movement. Marriage, after all, carries not only huge cultural, personal, and religious significance but also important legal consequences. Simply put, married couples have access to certain legal rights that non-married couples cannot access.

One of those rights is the right to survivor’s Social Security benefits after the death of a spouse. Generally speaking, these benefits are available (with certain exceptions and caveats) to the surviving spouse starting at age 60 provided that the marriage lasted at least 9 months. When same-sex marriage became the law of the land in 2015, a number of questions were left unanswered. Among them was the question of what accommodation, if any, should be made for the surviving partners of same-sex couples who would have been entitled to survivor’s Social Security benefits but for the fact that they were legally prohibited from getting married.

Thanks to the work of Lambda Legal, one of the oldest national legal organizations fighting for LGBTQ equality, we now have an answer to that question. In two separate class action lawsuits, one on behalf of surviving partners of same-sex couples who were never married (Thornton v. Commissioner) and one on behalf of surviving partners of same-sex couples who were married for less than 9 months (Ely v. Commissioner), Lambda Legal argued that the denial of survivor’s Social Security benefits to the surviving partners violated the law. The trial courts issued favorable decisions in both cases in 2020, and in November of last year the government withdrew its appeals and settled both cases.

Now that the decisions in both cases have been finalized, the Social Security Administration has begun implementing them. Importantly, the decision to award survivor’s Social Security benefits to a surviving partner is not based solely on the timing of the deceased partner’s death in relation to the lifting of the marriage ban in the couple’s home state, but rather a fact-intensive inquiry to determine whether (and when) a same-sex couple would have gotten married if there hadn’t been discriminatory laws preventing them from doing so.

Lamba Legal has provided detailed guidance for both the Thornton and Ely decisions on its website and indicates that surviving partners should be prepared to answer questions such as whether and for how long the couple lived together, whether the couple had a commitment ceremony or registered as domestic partners with their state or local government or employer, and how long the couple was together. Lambda Legal also suggests being prepared to provide documentary support, such as copies of estate planning documents naming each other as beneficiaries and/or fiduciaries, copies of beneficiary designation forms, copies of joint account statements, and even copies of mementos/memorabilia of your relationship (photos, greeting cards, etc.).

Both of these decisions are great news for the LGBTQ community, and Lambda Legal and other advocacy groups need all the help they can get to get the word out about the availability of these benefits. If you are or think you might be eligible for benefits under either of these decisions, We strongly encourage you to check out the links provided above. If you know someone or think you know someone who may be eligible for these benefits, please forward them this article (and ask them to forward it to anyone they might know who could be eligible).

February, 2022

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