Slow Path to Social Security Benefit Equality for Same-Sex Couples

A recent policy change offers retroactive survivors benefits to same-sex couples

A recent policy change now offers retroactive Social Security survivors benefits to same-sex couples who lost their partners before the establishment of marriage equality. Until recently, this benefit was not available to same-sex couples since they had been unable to legally marry. But older heterosexual couples with a spouse who qualified for Social Security benefits could typically count on receiving survivors benefits if they were widowed.

The death of a spouse is a devastating experience for anyone. Beyond the emotional toll of losing a partner, it can also leave the surviving spouse in financial turmoil. Social Security survivors benefits that the federal government offers can provide some financial help to spouses during this tragic time.

Key Takeaways

  • A recent policy change now offers retroactive Social Security survivors benefits to same-sex couples who lost their partners before the establishment of marriage equality.
  • To be eligible under the Thornton class, you technically must have filed an application for Social Security survivors benefits prior to November 25, 2020, and been denied only due to laws prohibiting same-sex marriage.
  • However, the Social Security Administration has agreed to review claims filed after that date for individuals who would have been eligible for benefits if not for discriminatory laws in place.

Marriage Equality Delivered New Benefits 

Since the middle of the 20th century, older heterosexual couples in America have been able to count on receiving Social Security survivors benefits if they are widowed. As long as they were married a minimum amount of time (typically nine months to a year) and the spouse has worked a certain number of years, which depends on your and your spouse's age and amount of income earned, a widow or widower could be eligible to receive monthly payments.

These spousal survivors benefits were only permitted for legally married couples, however. This kept same-sex couples from accessing this important safety net. This was especially problematic given that nearly a third of LGBTQ+ adults age 65 or above live at or below 200% of the poverty line, according to nonprofit SAGE.

Same-sex couples in America faced a predicament: Even if they were together for decades and shared everything, the government treated them like perfect strangers. A decade ago, this began to finally change thanks to Edie Windsor.

She had been with her partner Thea Spyer for 44 years and, two years before Spyer’s death, the couple legally wed in Canada in 2007. But due to existing legislation called the Defense of Marriage Act (DOMA), the United States government didn’t view them as married. A widowed spouse doesn’t have to pay estate taxes when they inherit assets or property. But since Windsor wasn’t legally considered a spouse, she was sent a massive estate tax bill when she inherited her partner’s sizable assets.

Through lawsuits that ultimately landed the case in the Supreme Court, DOMA was struck down in 2013. The court ruled that it violated the constitution’s equal protection clause and that it was illegal to discriminate against same-sex couples for federal protections and benefits.

The catch is that this only applied to couples who could legally wed and many states still didn’t permit it. Following the fall of DOMA, more and more states began allowing same-sex marriage, which entitled those couples to federal benefits. But for those who lived in a state without same-sex marriage, a legal union and its associated benefits were out of reach.

Marriage equality finally became law of the land with the Supreme Court’s 2015 Obergefell v. Hodges decision. Since then, same-sex couples can wed in any state, guaranteeing all of the same federal rights as any other couple. This included Social Security benefits, along with tax benefits.

The Social Security Administration does recognize some non-marital legal relationships, such as certain domestic partnerships and civil unions. But once the Obergefell decision required all states to permit same-sex marriage, it provided a more clear-cut path for couples to access federal benefits like Social Security survivors payments.

Older Couples Left Behind

The 2015 Supreme Court marriage equality decision ushered in a new era of rights and benefits for same-sex couples. This delivered a victory to couples who had recently wed or who planned to marry. The problem? It didn’t help older LGBTQ+ couples who were together for decades and widowed before they were allowed to marry legally or to receive any financial or legal benefits granted to spouses.

Recently, several new legal decisions have expanded rights to LGBTQ+ people in that position. In 2018, the legal organization Lambda Legal filed two class action lawsuits on behalf of Americans who were denied Social Security survivors benefits since the government didn’t view their relationship as legal.

One of the cases, Thornton v. Commissioner of Social Security, was filed in the state of Washington for surviving same-sex partners who were never permitted to marry before they were widowed. It was filed on behalf of Helen Thornton, whose partner died of cancer after 27 years together. Her partner died in 2006, but Washington didn’t allow domestic partnerships until 2007 or marriage until 2012.

The other case, Ely v. Saul, was filed in Arizona on behalf of Michael Ely. After his state began allowing same-sex marriage in 2014, he wed his partner of 43 years, but he was widowed six months later. This suit represented Ely and others who were able to marry but weren’t married long enough to qualify for Social Security spousal benefits (the minimum is nine months).

Both Washington and Arizona ruled that denying couples spousal benefits was unconstitutional since they weren’t legally allowed to marry or meet marriage qualification rules due to discriminatory laws at the time.

However, the Trump administration appealed both of these decisions in 2020 in an attempt to deprive these couples of retroactive benefits and the cases remained caught up in court.

Victory at Last

When the Biden administration entered the White House, its legal team began reviewing pending legislation such as these cases. The new administration agreed with the lower courts: Same-sex couples who were widowed prior to marriage equality should receive benefits.

In November 2021, the Biden Administration’s Justice Department and Social Security Administration formally dismissed both of these appeals. This meant that same-sex couples could now apply for benefits retroactively. A letter from the Acting Solicitor General explains that if a couple “would have married but for a state law later held unconstitutional in Obergefell,” they could now seek Social Security insurance benefits as though they had been legally married.

To be eligible under the Thornton class, you technically must have filed an application for Social Security survivors benefits prior to November 25, 2020, and have been denied only due to laws prohibiting same-sex marriage. However, the Social Security Administration has agreed to review claims filed after that date for individuals who would have been eligible for benefits if not for discriminatory laws in place.

If you were able to get married but were not married for the minimum of nine months—and you applied for Social Security benefits and were denied—you could be eligible for relief in the Ely class.

What Recently Changed With Social Security Benefits for LGBTQ+ People?

In November 2021, it became possible for some widowed in same-sex marriages to claim Social Security survivors benefits—even if they weren't legally married or hadn't been married the typical minimum amount of time required. That's because it's been legally decided that they were illegally deprived of the right to marry prior to marriage equality, so they shouldn't be prevented from receiving spousal benefits due to timing.

How Do I Find Out if I'm Eligible for Survivors Benefits Now?

If you think you might qualify for Social Security survivorship benefits based on these legal changes for same-sex couples, you can call the Social Security Administration at 1-800-772-1213 or visit your local Social Security office.

What Are the Requirements for Receiving Social Security Survivors Benefits?

The rules are a bit complicated, but Social Security survivors benefits are typically only available to widows or widowers who are aged 60 or older, though those with disabilities may receive it at age 50 or older. Spouses of any age are eligible for benefits if they're the caregiver of the deceased's child under the age of 16 or a child with disabilities. The deceased spouse must have also worked a certain number of years, which is calculated using a credit system based on income and years—though nobody needs to have worked more than 10 years to receive benefits.

The Bottom Line

Full equality for LGBTQ+ Americans is yet to be seen. Steps like marriage equality and now extending Social Security survivors benefits to same-sex widows and widowers offer new ways to bolster financial health and security. If Congress eventually passes the Equality Act, LGBTQ+ citizens will have even more and longer-lasting legal and financial protections moving forward.

Article Sources

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  1. Social Security Administration. "Same Sex Couples."

  2. Social Security Administration. "Notice of Class Action Order: Thornton V. Commissioner of Social Security."

  3. Social Security Administration. "Summary of Major Benefits Under the Social Security Program."

  4. Social Security Administration. "If You Are the Survivor."

  5. Sage USA. "The Biden Administration Is Paying Survivors Benefits to LGBTQ+ Elders."

  6. Edie Windsor. "Home."

  7. American Civil Liberties Union. "Windsor V. United States - Frequently Asked Questions (FAQ)."

  8. American Civil Liberties Union. "Windsor v. United States."

  9. Lambda Legal. "Victory! Lambda Legal Secures Social Security Survivor's Benefits for Same-Sex Partners."

  10. Michael J. Higdon. "(In)Formal Marriage Equality," UTK Law Faculty Publications, 9-2020, pp. 21. 

  11. Social Security Administration. "Notice of Class Action Order: Ely v. Saul."

  12. Lambda Legal. "Ely v. Saul (Formerly Ely v. Berryhill)."

  13. Arthur S. Leonard. "Biden Administration Drops Trump Administration’s Appeals of Lambda Legal’s Social Security Benefits Victories for Surviving Partners/Spouses," Other Publications, New York Law School, 11-2021, pp. 5-6. 

  14. The United States Department of Justice. "Thornton and Ely the Honorable Nancy Pelosi 530D Letter."

  15. Social Security Administration. "Notice of Class Action Order: Thornton v. Commissioner of Social Security."

  16. Congress. "H.R.5 - Equality Act."

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