While straight couples have been eligible to receive Social Security survivors benefits for over 80 years, this important financial entitlement only recently become accessible to same-sex couples. A policy change in late 2021 began offering retroactive Social Security survivors benefits to same-sex couples who lost their partners before the establishment of marriage equality. Until that change, this benefit was not available to same-sex couples since they had been unable to legally marry. But older heterosexual couples with a spouse who qualified for Social Security benefits could typically count on receiving survivors benefits if they were widowed.

The death of a spouse is a devastating experience for anyone. Beyond the emotional toll of losing a partner, it can also leave the surviving spouse in financial turmoil. For 2023, the average monthly Social Security benefit for surviving nondisabled spouses is $1,713—likely not enough to live on, but nonetheless a significant assist from the federal government during a tragic time.

Marriage Equality Delivered New Social Security Benefits 

Since the middle of the 20th century, older heterosexual couples in America have been able to count on receiving Social Security survivors benefits if they are widowed. As long as they were married a minimum amount of time (typically nine months to a year) and the spouse worked a certain number of years, which depends on your and your spouse's age and amount of income earned, a widow or widower could be eligible to receive monthly payments.

These spousal survivors benefits were only permitted for legally married couples, however. This kept same-sex couples from accessing this important safety net. This was especially problematic given that nearly a third of LGBTQ+ adults age 65 or above live at or below 200% of the poverty line, according to nonprofit SAGE.

Same-sex couples in America faced a predicament: Even if they were together for decades and shared everything, the government treated them like perfect strangers. A decade ago, this began to finally change thanks to Edie Windsor.

She had been with her partner, Thea Spyer, for 44 years and, two years before Spyer’s death, the couple legally wed in Canada in 2007. But because of the Defense of Marriage Act (DOMA), legislation that existed at the time, the United States government didn’t view them as married. A widowed spouse doesn’t have to pay estate taxes when they inherit assets or property. But since Windsor wasn’t legally considered a spouse, she was sent a massive estate tax bill when she inherited her partner’s sizable assets.

Through lawsuits that ultimately landed the case in the Supreme Court, DOMA was struck down in 2013. The court ruled that it violated the constitution’s equal protection clause and that it was illegal to discriminate against same-sex couples for federal protections and benefits.

The catch is that this only applied to couples who could legally wed and many states still didn’t permit it. Following the fall of DOMA, more and more states began allowing same-sex marriage, which entitled those couples to federal benefits. But for those who lived in a state without same-sex marriage, a legal union and its associated benefits were out of reach.

Marriage equality finally became the law of the land with the Supreme Court’s 2015 Obergefell v. Hodges decision. Since then, same-sex couples can wed in any state, guaranteeing all of the same federal rights as any other couple. This included Social Security benefits, along with tax benefits.

The Social Security Administration does recognize some non-marital legal relationships, such as certain domestic partnerships and civil unions. But once the Obergefell decision required all states to permit same-sex marriage, it provided a more clear-cut path for couples to access federal benefits like Social Security survivors payments.

Older Couples Left Behind With Survivors Benefits

The 2015 Supreme Court marriage equality decision ushered in a new era of rights and benefits for same-sex couples. This delivered a victory to couples who had recently wed or who planned to marry. But it didn’t help older LGBTQ+ couples who had been together for decades and were widowed before they were allowed to marry legally or to receive any financial or legal benefits granted to spouses.

In recent years, several legal decisions expanded rights to LGBTQ+ people in that position. In 2018, the legal organization Lambda Legal filed two class action lawsuits on behalf of Americans who were denied Social Security survivors benefits since the government didn’t view their relationship as legal.

One of the cases, Thornton v. Commissioner of Social Security, was filed in Washington state for surviving same-sex partners who were never permitted to marry before they were widowed. It was filed on behalf of Helen Thornton, whose partner died of cancer after 27 years together. Her partner died in 2006, but Washington didn’t allow domestic partnerships until 2007 or marriage until 2012.

The other case, Ely v. Saul, was filed in Arizona on behalf of Michael Ely. After his state began allowing same-sex marriage in 2014, he wed his partner of 43 years, but he was widowed six months later. This suit represented Ely and others who were able to marry but weren’t married long enough to qualify for Social Security spousal benefits (the minimum is nine months).

Both Washington and Arizona ruled that denying couples spousal benefits was unconstitutional since they weren’t legally allowed to marry or meet marriage qualification rules due to discriminatory laws at the time.

However, the Trump administration appealed both of these decisions in 2020 in an attempt to deprive these couples of retroactive benefits and the cases remained caught up in court.

Retroactive Survivors Benefits Awarded to Same-Sex Couples

When the Biden administration entered the White House, its legal team began reviewing pending legislation such as these cases. The administration agreed with the lower courts: Same-sex couples who were widowed prior to marriage equality should receive benefits.

In November 2021, the Biden Administration’s Justice Department and Social Security Administration formally dismissed both of these appeals. This meant that same-sex couples could now apply for benefits retroactively. A letter from the Acting Solicitor General explains that if a couple “would have married but for a state law later held unconstitutional in Obergefell,” they could now seek Social Security insurance benefits as though they had been legally married.

To be eligible under the Thornton class, you technically had to have filed an application for Social Security survivors benefits prior to November 25, 2020, and have been denied only due to laws prohibiting same-sex marriage. However, the Social Security Administration has agreed to review claims filed after that date for individuals who would have been eligible for benefits if not for discriminatory laws in place.

If you were able to get married but were not married for the minimum of nine months—and you applied for Social Security benefits and were denied—you could be eligible for relief in the Ely class.

Victories for LGBTQ+ people in the past decade have been cobbled together through lawsuits, executive orders, and policy changes that are easily reversed. But the Equality Act would more permanently codify non-discrimination laws in all key areas of life for the community. While the House of Representatives passed the legislation twice, it has yet to get through the Senate.

Anxiety skyrocketed for LGBTQ+ couples when Supreme Court Justice Clarence Thomas suggested in 2022, in his concurring opinion to overturn Roe v. Wade, that marriage equality should potentially be overturned. In reaction, Congress swiftly passed the bipartisan Respect For Marriage Act, which President Biden signed into law. It's far narrower than the proposed Equality Act and doesn't prevent marriage equality from being struck down and states subsequently banning same-sex marriage again. However, if Obergefell does fall, this new law ensures that if a same-sex couple gets married in a state that legally permits it, all states and the federal government must legally recognize the marriage. The law also protects interracial marriages.

While this law is far from perfect, and it means one day couples again may have to travel to other states to marry, it ensures legally married couples will continue to receive federal benefits like Social Security.

The Bottom Line

Full equality for LGBTQ+ Americans is yet to be seen. Steps like marriage equality and extending Social Security survivors benefits to same-sex widows and widowers offer new ways to bolster financial health and security. If Congress eventually passes the Equality Act, LGBTQ+ citizens will have even more and longer-lasting legal and financial protections moving forward.