Finally, Social Security Survivor Benefits for LGBTQ+ Americans
This landmark in LGBTQ+ equality is the result of several years of legal challenges by people like
Albuquerque resident Anthony Gonzales. Anthony and his partner, Mark Johnson, lived here together for
nearly 16 years, frustrated that they might not ever be able to marry in New Mexico. But in August 2013,
Bernalillo County began issuing marriage licenses for same-sex couples. Anthony and Mark were among
the first to take advantage of this long-awaited opportunity to recognize their commitment.
Sadly, after so many years of waiting, Mark died of cancer in early 2014. Shortly thereafter, Anthony lost
his job at a local nonprofit and had difficulty finding another one while he was also caring for his elderly
mother. Encouraged by his financial adviser, Anthony applied for Social Security survivor’s benefits a
week before he was to turn 60. Benefits would have started when he turned 60, but his application was
denied because he and Mark had been legally married for only about six months, not nine – the threshold
for survivor benefits at that time.
Anthony decided to fight that ruling because he knew his husband would have done the same had their
situations been reversed. “We both believed that as gay men we should have the same rights as anybody
else.” Lambda Legal represented Anthony in his own lawsuit and also cited his experience in Ely v. Saul,
a class action suit they brought against the Social Security Administration in 2018. In November 2021, the
Biden administration dropped the government’s appeals in both the Ely class action and the related class
action of Thornton v. Commissioner, on behalf of individuals who never got to marry their same-sex
partners at all because of discriminatory marriage laws.
When the Social Security Administration finally changed its policy in response to court rulings, Anthony,
now 66, began receiving monthly survivor’s benefits. He also received a substantial one-time retroactive
payment. This allows him to delay claiming his own Social Security benefit until it reaches the maximum
monthly amount, when he turns 70.
Click here for a 3-minute video about Anthony’s long ordeal.
Important Basic Facts for Your Personal Situation
1. In response to two class action lawsuits (Ely and Thornton), the Social Security Administration
changed its policy regarding same-sex couples who were either never able to marry at all, or whose
marriages were delayed, because of discriminatory state laws excluding same-sex couples from
marriage.
Click here for information about the new policy.
2. A surviving spouse or partner can apply for survivor’s benefits starting at age 60. A surviving spouse or
partner living with a disability can apply starting at age 50. While Anthony is an example of a surviving
spouse because he was able to marry Mark, Lambda Legal had a second class action suit on behalf of
surviving same-sex partners who never got to marry their loved ones at all before they died. That would
include, for example, people who lost their partners in the 80s, 90s, etc., long before marriage equality
was on the horizon. They also have access to survivor’s benefits now, even though they aren’t surviving
“spouses.”
3. You can start the filing process whenever you are age eligible, even if your spouse or partner died
many years ago.
4. There are no specific legal documents required to start your claim. However, the overarching question
for SSA is whether, if discriminatory marriage laws had never existed, the individual at issue would have
satisfied the marriage-related criteria for survivor’s benefits. Many same-sex couples may have entered
into commitment ceremonies which can help to show they would have been married by no later than that
the threshold requirement of nine months. You might also have evidence like joint bank accounts, leases,
mortgages, insurance policies or wills that name your partner as beneficiary or heir.
Peter Renn, Counsel at Lambda Legal’s Western Regional Office commented, “Helping to spread the
word to others about this newly opened pathway to benefits is really the most important thing that people
in our community can do. There are thousands of same-sex couples who were never able to marry, or
whose marriages were delayed, and the surviving partners and spouses may be unaware that they could
be entitled to access thousands of dollars in benefits. Depending on the circumstances, the amount of
benefits at issue for just one person can be six figures over their lifetime, so there can be a significant
amount at stake.”
Albuquerque resident Anthony Gonzales. Anthony and his partner, Mark Johnson, lived here together for
nearly 16 years, frustrated that they might not ever be able to marry in New Mexico. But in August 2013,
Bernalillo County began issuing marriage licenses for same-sex couples. Anthony and Mark were among
the first to take advantage of this long-awaited opportunity to recognize their commitment.
Sadly, after so many years of waiting, Mark died of cancer in early 2014. Shortly thereafter, Anthony lost
his job at a local nonprofit and had difficulty finding another one while he was also caring for his elderly
mother. Encouraged by his financial adviser, Anthony applied for Social Security survivor’s benefits a
week before he was to turn 60. Benefits would have started when he turned 60, but his application was
denied because he and Mark had been legally married for only about six months, not nine – the threshold
for survivor benefits at that time.
Anthony decided to fight that ruling because he knew his husband would have done the same had their
situations been reversed. “We both believed that as gay men we should have the same rights as anybody
else.” Lambda Legal represented Anthony in his own lawsuit and also cited his experience in Ely v. Saul,
a class action suit they brought against the Social Security Administration in 2018. In November 2021, the
Biden administration dropped the government’s appeals in both the Ely class action and the related class
action of Thornton v. Commissioner, on behalf of individuals who never got to marry their same-sex
partners at all because of discriminatory marriage laws.
When the Social Security Administration finally changed its policy in response to court rulings, Anthony,
now 66, began receiving monthly survivor’s benefits. He also received a substantial one-time retroactive
payment. This allows him to delay claiming his own Social Security benefit until it reaches the maximum
monthly amount, when he turns 70.
Click here for a 3-minute video about Anthony’s long ordeal.
Important Basic Facts for Your Personal Situation
1. In response to two class action lawsuits (Ely and Thornton), the Social Security Administration
changed its policy regarding same-sex couples who were either never able to marry at all, or whose
marriages were delayed, because of discriminatory state laws excluding same-sex couples from
marriage.
Click here for information about the new policy.
2. A surviving spouse or partner can apply for survivor’s benefits starting at age 60. A surviving spouse or
partner living with a disability can apply starting at age 50. While Anthony is an example of a surviving
spouse because he was able to marry Mark, Lambda Legal had a second class action suit on behalf of
surviving same-sex partners who never got to marry their loved ones at all before they died. That would
include, for example, people who lost their partners in the 80s, 90s, etc., long before marriage equality
was on the horizon. They also have access to survivor’s benefits now, even though they aren’t surviving
“spouses.”
3. You can start the filing process whenever you are age eligible, even if your spouse or partner died
many years ago.
4. There are no specific legal documents required to start your claim. However, the overarching question
for SSA is whether, if discriminatory marriage laws had never existed, the individual at issue would have
satisfied the marriage-related criteria for survivor’s benefits. Many same-sex couples may have entered
into commitment ceremonies which can help to show they would have been married by no later than that
the threshold requirement of nine months. You might also have evidence like joint bank accounts, leases,
mortgages, insurance policies or wills that name your partner as beneficiary or heir.
Peter Renn, Counsel at Lambda Legal’s Western Regional Office commented, “Helping to spread the
word to others about this newly opened pathway to benefits is really the most important thing that people
in our community can do. There are thousands of same-sex couples who were never able to marry, or
whose marriages were delayed, and the surviving partners and spouses may be unaware that they could
be entitled to access thousands of dollars in benefits. Depending on the circumstances, the amount of
benefits at issue for just one person can be six figures over their lifetime, so there can be a significant
amount at stake.”