Since the landmark Supreme Court decision in 2015 of Obergefell v. Hodges, 536 US 644, ruling state laws that prohibited same-sex marriage unconstitutional, two U.S. District Court decisions in 2020 have expanded the ability of survivors of same-sex couples to claim Social Security survivors benefits. The Trump administration filed appeals of these decisions that the Biden administration has recently dropped.
In Ely v. Saul, Case No. CV-18-0557-TUC-BGM, decided in May 2020, Michael Ely and James Taylor were married immediately after Arizona’s ban on same-sex marriage was overturned in 2014; Taylor died six months later. Ely filed for, but was denied, Social Security survivors benefits since he couldn’t prove that he was married to Taylor for at least nine months prior to his death, as required by Social Security. In reversing Social Security’s decision, the Court held that since the Administration’s duration of marriage requirement was based on an unconstitutional Arizona law that did not recognize same-sex marriage, it couldn’t be relied upon to deny survivors benefits to Ely.
In Thornton v. Commissioner, Case No. C18-1409JLR, decided in September 2020, Helen Thornton and her partner, Margery Brown, had been together for 27 years in the state of Washington before Brown’s death in 2006. Thornton applied for Social Security survivors benefits in 2015 based on Brown’s work history but was denied, since same-sex marriage wasn’t recognized under Washington state law at the time of Brown’s death. Social Security determined that since Thornton was not married to Brown under Washington law when Brown died, she could not claim survivors benefits. In reversing Social Security’s decision, the Court held that application of the marriage requirement in Thornton’s case violated her due process and equal protection rights under the 5th and 14th amendments, since the requirement was based on an unconstitutional Washington state law. The Court further held that it was undisputed that Thornton and Brown would have married but for Washington law. However, according to the Court, any claim for survivors benefits in such cases must be supported by proof of commitment, such as joint bank accounts, leases, mortgages, insurance policies, or wills that name a partner as beneficiary.
The Court extended relief in Thornton to a class of individuals nationwide who presented claims for Social Security survivors benefits prior to November 25, 2020, based on the work history of their same-sex partner and who were barred from satisfying the marriage requirements for such benefits because of state laws that prohibited same-sex marriage. However, the Social Security administration published a bulletin on October 15, 2021, entitled “Notice of Class Action Order, Thornton v. Commissioner of Social Security”, that they would not limit relief to individuals who had filed applications for survivors benefits prior to November 25, 2020. They would instead “adjudicate claims from surviving partners of same-sex relationships who file applications after November 25, 2020 on the same terms and conditions as the agency processes the claims for members of the Thornton class. Therefore, the surviving partners of same-sex relationships who file after November 25, 2020, and allege that unconstitutional state laws prevented them from marrying before [their partner’s] death, will receive additional consideration pursuant to the decision in Thornton.”
Survivors of same-sex partners who are over the age of 60 (or over age 50 and disabled) and believe they can satisfy the commitment requirements discussed in Thornton should apply for survivors benefits if the deceased partner was entitled to a larger Social Security benefit than the survivor. If successful, they may be found eligible for both prospective and retroactive benefits, which could significantly enhance their financial security in retirement.