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Social Security Recognizes Survivor Benefits for More Same-Sex Couples

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What You Need to Know

  • Advisors and clients may not know about the change, made in November when the SSA dropped Trump-era appeals to two lawsuits.
  • The decision could affect thousands who can prove they were in a committed relationship prior to the legalization of same-sex marriage in 2015.
  • Survivors may not only get monthly benefits, but retroactive payments as well.

The U.S. Supreme Court ruling in 2015 that same-sex couples have a constitutional right to marry in all states, and have that decision recognized by the states, also allowed same-sex married couples to receive Social Security spousal benefits after being married for nine months.

But what about those who had been in a long-term committed relationship that wasn’t recognized under federal law, and whose spouse died prior to 2015? Did they have any legal recourse to get survivor benefits through Social Security?

In November, the Social Security Administration dropped Trump-era appeals to two lawsuits — Thornton v. Commissioner of Social Security and Ely v. Saul — that sought survivors’ benefits that would pre-date the 2015 law change, according to an article in The New York Times.

As a result, same-sex couples who can show they were committed — or legally married in states that allowed it prior to the 2015 Supreme Court decision — can receive Social Security survivors’ benefits, including retroactive payments. Survivors who were married less than nine months before their partner’s death can also receive benefits.

Proof of commitment can be provided through joint bank accounts, leases, mortgages, insurance policies or wills that name a partner as a beneficiary or heir, according to the Times article.

“SSA largely follows state law with regard to who is married,” Nancy J. Altman, president of Social Security Works, told ThinkAdvisor in an email, adding this was an “extremely important” subject.

“When the Supreme Court found that the constitution requires states to recognize same-sex marriage, SSA recognized them for Social Security purposes. SSA also recognizes common law marriages.”

(Only a handful of states recognize common law marriages, and the qualifications vary by state.)

“The question was whether SSA should recognize same-sex common law marriages when states prohibited same-sex couples from marrying. I think it is exactly the right answer that SSA should now recognize them too and it is gratifying to see that SSA is now doing that.”

Advisors can help their same-sex clients who might fall into this category. The SSA has identified 700 people who had applied and been denied survivor’s benefits and will allow them to have cases reviewed, the article stated. However, some experts predict there are thousands who aren’t aware of the change.

In June 2021, the SSA stated that 65 million Americans received some form of Social Security benefits. Of that amount, almost 6 million collected survivor benefits.

Clients who can prove they fall into this category may not only receive survivor benefits, but also potential retroactive payments. A widow or widower can collect reduced survivor benefits as early as age 60. If disabled they can claim them as early as age 50.