As the 2021 tax season approaches, it’s important for LGBTQ widows whose partners passed away before marriage equality was legal to remember when filing they are eligible for social security survivor benefits.
Although the Biden administration dropped appeals in two class action lawsuits late last year that had been filed by LGBTQ advocates during the Trump era to get the Social Security Administration (SSA) to grant the benefits, many senior survivors aren’t aware what that can potentially mean for them.
Typically, a couple must be married for at least nine months to be eligible for survivor’s benefits, but Lambda Legal argued successfully in favor of two widows who were unable to do so because their partners died before marriage equality was legal.
One plaintiff was Helen Thornton, who was denied Social Security survivor benefits after her partner of 27 years passed away in 2006.
U.S. District Judge James Robart of Seattle ordered the SSA to give Thornton the survivor benefits, saying that denying her the benefits violates her constitutional due process and equal protection rights.
The judge recommended a nationwide order requiring SSA to reconsider claims for survivor benefits and to stop denying survivor benefits to same-sex partners just because they couldn’t legally get married in the past.
The Trump SSA argued that the ban on benefits for same-sex couples who weren’t officially married before marriage equality was legal “reduces the risk of fraudulent marriages.”
But Judge Robart said that the SSA can’t use Washington’s ban on same-sex marriage to deny people benefits, calling the marriage ban “an unconstitutional law that discriminated on the basis of sexual orientation.”
The other plaintiff, Michael Ely, an Arizona gay man, won a federal court case after he too was denied Social Security survivor benefits when his husband James Taylor passed away in 2014.
They were together for 43 years and they married a month after a judge legalized marriage equality in their state. But six months into their marriage Taylor passed away.
The SSA originally denied Ely benefits, saying that they had to have been married for nine months for Ely to qualify. Because the nine-month requirement was “based on an unconstitutional Arizona law, it cannot withstand scrutiny at any level,” a federal judge ruled in that case.
The Trump administration had filed appeals in these cases, but the Biden Administration dropped those appeals to allow the rulings to stand.
“For decades, same-sex couples paid into social security, just like different-sex couples.” explains Lambda Legal Senior Counsel and Seniors Strategist Karen Loewy. “The difference was, only one group always had the freedom to marry, leading to gross inequalities that continued to linger. [Now] surviving same-sex partners and spouses can securely access the benefits that they are owed and that can be essential to their continued health and safety.”