Social Security survivor benefits for same-sex couples

Social Security survivor benefits can be worth hundreds of thousands of dollars over a lifetime. For most married couples, the rules are simple. For same-sex couples who were kept from marrying, or from marrying sooner, the rules didn't always fit their lives, and two court decisions have changed that.

The usual rules

A surviving spouse can generally receive a benefit based on their late spouse's work record, starting as early as 60. If both spouses had benefits, the survivor keeps the larger check.

There's a catch: in most cases, the couple must have been married for at least nine months before the death. (There are exceptions, for example when the death was accidental.)

For couples who had been together for decades but could only marry recently, or never could, that rule could mean losing benefits entirely.

If you were never able to marry: the Thornton decision

In Thornton v. Commissioner of Social Security, a federal court ruled that surviving partners who were prevented from marrying by laws banning same-sex marriage shouldn't be denied survivor benefits for that reason.

Social Security now reviews these claims. If you're a surviving partner who would have married if the law had allowed it, you can apply, even if your partner died years ago and even if you were turned down before.

If you married, but not soon enough: the Ely decision

In Ely v. Saul, the court addressed survivors who were married but for less than nine months, because a ban kept them from marrying earlier. If that describes you and your claim was denied, you may be able to have it reconsidered.

What about civil unions and domestic partnerships?

In some cases, Social Security can treat a civil union or registered domestic partnership as a marriage, depending on the state where it was formed and the rights that state gave partners. If you had one before you married, mention it when you apply.

How to apply

• Contact Social Security, by phone or at your local office, and say you're applying for survivor benefits as a same-sex partner or spouse, and that you believe the Thornton or Ely decision may apply to you.
• Gather evidence of your relationship and of your intent to marry: joint bank accounts or property, a domestic partnership or civil union certificate, a commitment ceremony, wills naming each other, and statements from friends or family.
• Apply even if you're not sure. If you were denied before, ask for a new review. There isn't a published deadline, but benefits are generally tied to when you apply, so waiting can cost you.

Legal groups such as Lambda Legal have helped many people through this process, and an elder-law attorney can help too.

Plan ahead if you're both living

If you're married now, survivor benefits are generally protected. The age the higher earner starts Social Security also sets the check the survivor would keep, so it's worth deciding together.

This is general information, not legal advice. Social Security's own page on the Thornton decision has the latest details.