Aging is just one more thing in the intersectional lives of LGBTQ individuals that creates challenges. If it’s not housing or affirming medical care, it’s accessing benefits when we lose our partners. If you have doubts, just speak with LGBTQ community members who are seniors and partnered. You’re most likely to hear a plethora of stories about discriminatory practices dished out by everyone from hospital staff to estate executors. Until recently, that list would have included Social Security benefits as well.
While we’re making strides in equity for the LGBTQ community, it wasn’t until 2015 that same-sex marriage become legal in the United States. On June 26, 2015 the U.S. Supreme Court effectively stymied the patchwork quilt of bans that existed on same-sex marriage in most states. When it was all said and done, Marriage Equality became the law of the land in all 50 states. Even states that had bans in their state’s constitution were required to honor out of state marriage.
With all that pride and celebration over marriage, no one seemed to think about the longevity of our relationships and how our surviving partners would survive without us and the assistance or support the government offered to heterosexual married couples. That said, it took the Social Security Administration (SSA) another five years to catch up. As you might imagine, it seemingly wasn’t out of the goodness of anyone’s heart, as much as it was because of a few lawsuits, either.
Prior to the lawsuits, Social Security benefits did not exist for same-sex couples. The change in legislation and policy was due greatly in part to Lambda Legal. Founded in 1973, Lambda Legal is a 501(c)3 nonprofit that does not charge clients for advocacy or legal representation. They receive zero government funding and remain the largest and oldest national legal organization “whose mission is to achieve full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and everyone living with HIV through impact litigation, education and public policy work.”
The Lambda Legal website is the place to find information on and for “Surviving Same-Sex Partners and Spouses previously excluded from Social Security Survivor benefits because of Unconstitutional State Marriage Laws.” The two class action law suits that prompted the change in Social Security Administration policy can be referenced on Lambda Legal’s site also – but here’s a condensed version.
In Ely v. Saul , Michael Ely was a 65-year-old gay man seeking spousal survivor’s benefits based on his 43-year relationship with his husband, who died seven months after Arizona began allowing same-sex couples to marry. The lawsuit filed on behalf of Ely argued that the SSA’s policy of a nine month marriage requirement for Social Security survivor’s benefits was unconstitutional when same-sex couples were not able to be married for nine months because of discriminatory marriage laws.
The other landmark case, Thornton v. Commissioner of Social Security involves a 63-year-old lesbian seeking benefits based on her relationship with her partner of 27 years, who died in 2006 before same-sex couples in the State of Washington were able to marry. This lawsuit was filed arguing that SSA’s exclusion of same-sex couples from survivor’s benefits based on their inability to marry was unconstitutional.
Referencing these cases enables previously discriminated against LGBTQ folks seeking Social Security Survivor Benefits to identify the category of amended policy they may fit into and how they may now qualify for benefits.
Lambda Legal’s simplified explanation of how to figure out which category [class] you may be in is as follows: if you would have been married to your same-sex partner for at least nine months before their death but were never able to marry because of discriminatory marriage laws where you lived, you may be a member of the Thornton class, or, if you married your same-sex spouse but were unable to be married for a least nine months before your spouse’s death because of discriminatory marriage laws where you lived, you may be a member of Ely class.
Not only has an extra dose of equity been poured into the half-full glass of inclusion most LGBTQ folks aim to sip from, but many same-sex surviving partners will receive benefits that are retroactive.
Christian Murphy, who posted a gratitude comment on Lambda’s site claimed to be one of them and stated, “…after a simple telephone interview with the SSA, and my submitting the documents required, my claim was accepted and I was given six months benefits retroactive. My total benefit from the survivors claim has more than doubled my current SS payment. I was at first astonished and joyful about the amount of extra benefits I would receive, but once the money aspect wore off I realized that is so much more of a victory. After having felt disenfranchised during my late partner’s battle with AIDS, and unable to share my grieving with so many people, as I watched him die, this court ruling has felt like a wonderful vindication and validation of our 15 year marriage.”
Closer to home, Charlotte LGBTQ advocate and attorney Connie Vetter has been deeply committed to utilizing the law and legal pathways to seek and exact justice for the queer community for many years.
“This is one of the most important things that has happened for the LGBT community,” Vetter explains. “It isn’t difficult to understand there’s a generation of us who – for good reason – have a fear of governmental entities. Social Security is a government benefit that people have earned. We are entitled to benefits and should take advantage of them.”
As Vetter confirms, staying in the loop is important and an integral part of securing equity and financial stability. For details on Social Security benefits visit https://www.ssa.gov/ frequently, as the fine print has been known to change routinely.