The New Old Age
Challenging a policy that limited survivor’s benefits to married couples, even though some couples were legally barred from marriage, took years.
Helen Thornton and Margery Brown began dating in 1979. After just a few months, Ms. Thornton said, “I knew that I wanted to spend the rest of my life with this person, and Margie felt the same way.”
Over three decades, they bought a home in Olympia, Wash., took out loans together, shared a checking account and attended family gatherings and community events. They raised a son whose birth certificate carried both their names. They talked about traveling after retirement, maybe kayaking in Ireland.
But in 2003, Ms. Brown received a diagnosis of ovarian cancer. Ms. Thornton cared for her through repeated rounds of chemotherapy and intensifying illness until Ms. Brown died in 2006, at age 50.
In 2015, shortly before Ms. Thornton turned 60 — the age at which most widows and widowers are eligible for survivor’s benefits from Social Security — she walked into the agency’s local office, carrying bank statements and the title to their house, and applied.
“I figured I’d be rejected,” she said, because under Social Security, spousal survivor’s benefits were limited to married couples. She and Ms. Brown would have married had they been able to, Ms. Thornton said. But same-sex marriages didn’t become legal in Washington State until 2012; they became legal in every state in 2015 after a Supreme Court ruling.
Nevertheless, Ms. Thornton intended to make a statement: “I wanted Social Security to see that here was a lesbian couple that was together for 27 years, and here are the consequences of not having equal rights under the law.”
Challenging the policy that limited survivor’s benefits to married couples took years and a class-action lawsuit that bears Ms. Thornton’s name. In November, the agency dropped its Trump-era appeals against Thornton v. Commissioner of Social Security and Ely v. Saul, two federal lawsuits brought by surviving same-sex partners or spouses.
The Social Security Administration now allows gay men and lesbians to receive survivor’s benefits if they can show that they were in a committed relationship and would have married had that been possible. The change could mean greater economic protection for a population with higher poverty rates than American adults overall.
Almost six million of the nation’s 65 million Social Security beneficiaries receive survivor’s benefits, including children. “Their whole purpose is to care for the survivors who lose their romantic and economic partners, a huge financial hardship,” said Karen Loewy, senior counsel at Lambda Legal, which brought the lawsuits along with local law firms.
Starting at age 60 — or 50 for those who are disabled — a survivor can either apply for a deceased spouse’s Social Security benefits (if these are higher than the survivor’s, or if the survivor does not have the work history to qualify) or apply for them temporarily and delay claiming their own (allowing their benefit to increase until they reach full retirement age or beyond).
“The surviving spouses can end up with a lot more income,” said Trinh Phan, senior staff attorney at Justice in Aging. The average survivor’s benefit, the Social Security Administration reports, is $1,467 a month.
Ms. Thornton, for instance, had always worked for nonprofit organizations — first a food co-op, then a theater — and never earned as much as Ms. Brown, a staff member and instructor at The Evergreen State College.
On her own, Ms. Thornton had to apply for Social Security early, at 62, and turned to pet-sitting to supplement her benefits of $953 a month. She lived frugally and did not visit family often. “I couldn’t just buy a plane ticket and fly to California,” she said. “I had to postpone maintenance on my house for years.”
Once Social Security began her paying survivor’s benefits, however, her monthly income nearly doubled, to $1,849. And she received a lump sum of $72,000, retroactive payment for the years the agency denied her application.
An unknown, and perhaps unknowable, number of people were never able to marry their late same-sex partners. But a second group has also become eligible for survivor’s benefits: same-sex couples who were married for less than nine months, the legal threshold for survivor’s benefits, before one spouse died.
Anthony Gonzales and his partner, Mark Johnson, lived together in Albuquerque, N.M., for nearly 16 years, thinking they would never be able to marry in their state.
But in August of 2013, their county clerk began issuing marriage licenses to same-sex couples, and they wed in a joyous outdoor group ceremony. “It was a beautiful day,” Mr. Gonzales recalled. New Mexico legalized same-sex marriage statewide a few months later.
Mr. Johnson, who had AIDS, also developed rectal cancer and died in hospice care in early 2014. Mr. Gonzales, his caregiver, lost his accounting job at a nonprofit organization not long afterward and had trouble finding another; he also helped care for his elderly mother.
At 60, taking the advice of his financial adviser, he applied for survivor’s benefits and was denied because he and his husband had been married for about six months, not nine.
“I decided to fight it,” Mr. Gonzales said, adding that his husband would have done the same had their positions been reversed. “We both believed that as gay men we should have the same rights as anybody else,” he said. Lambda Legal cited his experience in the Ely case in 2018.
When the Social Security Administration changed its policy, it began sending Mr. Gonzales, now 66, about $1,800 monthly in survivor’s benefits, plus a one-time $90,000 retroactive payment. That allows him to delay claiming his own benefit until it reaches the maximum monthly amount, when he turns 70.
How can survivors prove that they would have married, or married earlier, if they could have? They have to produce evidence like joint bank accounts, leases, mortgages, insurance policies or wills that name a partner as beneficiary or heir. “You shared a home,” Ms. Loewy said. “Or you had a commitment ceremony. Even photos and love letters. There are ways to demonstrate that you were in a committed relationship.”
Social Security agents, taking applicants’ accounts in phone interviews, are accustomed to making such determinations in cases involving common-law marriages, she said.
But different-sex couples who presented themselves as married, even if they never became legal spouses, may not have encountered the same discrimination, fears or need for discretion as many same-sex couples faced decades ago. Some never told employers, health care providers or their families about their relationships.
“The challenge for Social Security, to do it right, is to acknowledge the different situations,” Ms. Phan said.
Advocates also worry that many surviving same-sex partners or spouses don’t know that they have become eligible for survivor’s benefits, so they hope the Social Security Administration will conduct more public outreach.
The agency said in email that it had identified 700 people who had applied and been denied survivor’s benefits and notified them that as members of either the Ely or Thornton classes, they can have their cases reviewed; it plans to send a second notice. As of October, fewer than 100 claims had been processed, the agency said.
But at Lambda Legal, “we suspect there are thousands of people in these long-term relationships who never bothered to apply, because they thought it was futile,” Ms. Loewy said.
They can start the process now, regardless of how long ago their partners or spouses died. Lambda Legal has posted information to guide applicants.
Margery Brown would have been glad that other same-sex partners will benefit from her partner’s activism, Ms. Thornton said. “She’d be a little frustrated that it took as long as it did,” she said, “but proud that we took it on.”