Federal agencies clear way for LGBTQ people to access survivors benefits


Lambda Legal sees victory in its fight for widowed LGBTQ people to receive Social Security survivors benefits they're entitled to.

On Nov. 1, the LGBTQ legal rights organization Lambda Legal announced that the Justice Department and the Social Security Administration had cleared the way for LGBTQ people to collect Social Security survivors benefits they had previously been denied because of bans on same-sex marriage. Lambda declared victory after years of effort, including lawsuits it filed in 2018 on behalf of partners and spouses who couldn't marry or weren't married long enough to qualify for benefits because of such bans.

Lambda said in a statement posted to its website:

Today, the U.S. Department of Justice and the Social Security Administration (SSA) dismissed their Ninth Circuit appeals of two nationwide class actions won by Lambda Legal in favor of surviving same-sex spouses and partners denied equal access to social security survivor’s benefits. This development affects individuals who were unable to meet the requirement for survivor’s benefits that they be married for a minimum of nine months because of discriminatory marriage laws.

"The main critical development recently is that people who were never able to marry their loved ones at all now have a secure pathway to accessing survivor's benefits regardless of whether they applied in the past," said Peter Renn, counsel in Lambda Legal's western regional office, who has worked on the cases.

LGBTQ people who were in committed relationships but were banned from legal marriage and whose partners died prior to the landmark 2015 Supreme Court ruling in Obergefell v. Hodges that made marriage equality the law of the land had previously been ruled ineligible to receive survivors benefits they would have been entitled to had they been married. Before the ruling in Obergefell, 13 states had marriage bans enacted either by state law or by constitutional amendment.

Before the government dropped its appeal of federal court rulings in favor of the plaintiffs in the cases, people who had never married their partners could only be considered for survivors benefits if they had applied before Nov. 25, 2020.

In other cases, if an LGBTQ couple had been able to marry after the Obergefell ruling but one spouse died less than nine months after the marriage took place, the surviving spouse was ineligible for survivors benefits, according to rules that Karen Loewy, Lambda Legal senior counsel, said were originally intended to prevent fraudulent marriages for the sake of such benefits.

"As a result of recent actions by the Social Security Administration, that limitation is no longer the case, so people are able to finally apply on equal terms as everyone else. ... The practical effect for them is that their benefits are now no longer subject to being yanked away if the government had prevailed in its appeal," Renn told the American Independent Foundation.

"We know that there have been class members who have experienced homelessness because they've been deprived of these benefits," he said. "We've been contacted by other people in the community who are on the brink of losing their homes because they haven't had access to these benefits. It is enormously consequential that the government is finally now creating a pathway for everyone to equally access these benefits."

Helen Thornton, one of the people represented by Lambda Legal, lost her partner, Marge Brown, in 2006. Thornton told the American Independent Foundation in April 2020 that the pandemic had affected her income and made her financial situation even worse.

Renn said applicants can demonstrate the nature of their relationship with, for example, evidence of a commitment ceremony that predated their marriage ceremony or served in place of one and of financial interdependence. Applicants can also refer to life insurance policies of which they were the beneficiary, estate planning documents, and joint property ownership to be considered for benefits, according to Lambda Legal.

Renn said that the nine-month requirement will stay in place for applicants who have not faced discriminatory bans on marriage equality. Renn said that it isn't likely that the agency will propose a rule on the issue, which would take months to implement. The changes will eventually be formalized, he said, but for now the Social Security Administration has issued written instructions to staff on how to proceed and ensure people receive benefits they qualify for.

Published with permission of The American Independent Foundation.