Same-Sex Couples Who Could Not Marry Are Now Eligible for Social Security Survivors’ Benefits

April 3, 2022

Since 1940, Social Security has paid survivor benefits—one of the most valuable types of income the Social Security Administration (SSA) provides. When a worker dies, certain members of their family may be eligible for these benefits if the deceased had worked long enough and earned enough credits under Social Security. The number of years you need to work for your family to be eligible for survivors’ benefits depends on your age when you die. The younger you are, the fewer years you need to have worked.

Family members eligible for Social Security survivors’ benefits include widows, widowers (and divorced widows and widowers), children and dependent parents. Now the SSA has added a new group to those who are eligible: widowed same-sex partners who were previously barred from getting married.

In general, to be eligible for survivors’ benefits from Social Security, you must have been married when your partner passed away and for at least nine months before their death. Or you must have been married for at least 10 years before divorcing and have not remarried before the age of 60 (or age 50 if you have a qualifying disability).

Prior to November of last year, millions of Americans were ineligible for survivors’ benefits because they were long prevented from legally marrying the partner of their choosing. In particular, this impacted older LGBTQ individuals because same-sex marriage was not legalized nationally until the Supreme Court ruled in 2015 that barring same-sex marriages was unconstitutional.

The new rules—allowing survivors’ benefits to same-sex partners—are the result of two class action lawsuits instituted by individuals who lost their same-sex partners prior to being able to legally marry. In both cases, Thorton vs. Commissioner of Social Security and Ely v. Saul, the plaintiffs successfully argued that survivors’ benefits should extend to those denied the right to wed their partners.

In 2020, federal district courts in Arizona and Washington ruled that the restrictions barring surviving same-sex partners from receiving benefits were unconstitutional, but the Trump Administration appealed those rulings. Last fall, the Biden Administration dismissed those appeals, clearing the way for the extension of survivors’ benefits to same-sex couples.

The Social Security Administration now allows same-sex partners to receive survivors’ benefits even if they were not married, or were married for less than the typically required nine months—if they can provide evidence that they were in a committed relationship and would have married had that been possible.

This evidence can come in a variety of forms: a commitment ceremony, joint bank accounts, a co-owned home, a shared lease, insurance policies, or even pictures and letters.

While the precise amount the SSA pays in survivors’ benefits to qualifying individuals varies, the average survivors’ payment in 2022 is about $1,467 a month, according to the SSA.