Social Security / Veterans Spousal & Survivor Benefits

[Rick]

Federal Lawsuit Seeks Social Security Benefits for Lesbian Widow

 

A new federal lawsuit filed on 29 September 2014, on behalf of a lesbian widow, seeks parity of Social Security benefits between married same-sex couples and married opposite-sex couples throughout the entire USA.

 

The litigation, Tevyaw v. Colvin, was filed by Gay & Lesbian Advocates & Defenders (GLAAD) in the US District Court of Rhode Island on behalf of a 56-year-old lesbian widow who was denied spousal disability benefits and a lump sum death payment from the Social Security Administration.

 

In 2005, Deborah Tevyaw was married in Massachusetts to Patricia Baker, a career Rhode Island corrections officer. After being diagnosed with lung cancer, Baker died in 2011. In her remaining months, Baker lobbied for the legalization of same-sex marriage in Rhode Island, testifying on the issue before the state Senate.

 

Despite their legal marriage, Tevyaw was denied benefits upon her spouse's death by the Social Security Administration, which at first asserted the Defense of Marriage Act (DOMA) blocked her from receiving any benefits. But even after the Supreme Court ruled in June 2013 that Section 3 of that law was unconstitutional, the agency allegedly continued to deny Tevyaw benefits on the basis that Rhode Island wouldn't have recognized her marriage at the time of Baker's death.

 

According to her lawsuit, as a result of the Social Security Administration's repeated denial of benefits, Tevyaw has been living on a monthly income of $732 for more than three years and was forced to sell her home she owned for more than 38 years because she couldn't afford the mortgage.

 

The lawsuit asserts that the Social Security Administration should recognize Tevyaw's marriage because the law looks to whether courts in the state of domicile would find a couple "validly married." Further, the lawsuit notes that Rhode Island Governor Lincoln Chaffee's executive order on 24 May 2012, recognizing out-of-state same-sex marriages, asserts that the state has recognized out-of-state marriages since at least 1906. Therefore, the complaint contends the directive should apply to Tevyaw's marriage, even though Chaffee signed it after Baker's death.

 

If the Social Security Administration continues to interpret the law to deny Tevyaw benefits, the lawsuit alleges it would violate her right to equal protection and due process under the 14th Amendment to the US Constitution.

 

Janson Wu, GLAAD's senior staff attorney, said the Social Security Administration has undertaken a "misguided and mistaken application of the law" that has caused harm to married same-sex couples. "There is no doubt in our minds that Rhode Island would have recognized Pat and Deb as validly married at the time of Pat's death in 2011, and that Social Security's reading of the law is just plain wrong," Wu said.

 

The lawsuit was filed after the Obama administration announced on the one-year anniversary of the Supreme Court decision against DOMA that Social Security cannot pay out retirement and survivor spousal benefits to individuals in legal same-sex marriages, in most situations, if they live in non-marriage-equality states.

 

Before the announcement, GLAAD had contended affording these benefits to married same-sex couples regardless of state law would be consistent with the spirit of the DOMA decision. Instead, the administration determined passage of new legislation is necessary along the lines of the Social Security & Marriage Equality Act or the Social Security & Medicare Parity Act.

 

One of the paragraphs in the lawsuit's petition for relief asks the court to declare that widows(ers) of legal same-sex marriages be able to claim benefits as a result of the death of their spouse "so long as the courts of the state in which the insured individual is domiciled at the time of death would find that the marriage was validly entered into in the state where the marriage was performed."

 

That language amounts to calling on the Social Security Administration to allow the flow of spousal benefits to married same-sex couples in states without marriage equality, although the courts would ultimately make the decision on whether that change were necessary as a result of the lawsuit.

 

William "BJ" Jarrett, a Social Security spokesperson, said his agency agrees the issue behind the lawsuit "deserves additional consideration" and said the administration plans to review its policy manuals based on analysis of Rhode Island state common law.

 

"We have been working with the DOJ to apply the Windsor decision to the existing framework of laws and regulations that control our programs, and our collaboration has allowed us to process many claims," Jarrett added. "The remaining issues are complex, and we must thoroughly analyze all the relevant factors to ensure that any new policies and procedures are consistent with the requirements of the Supreme Court's decision, the Social Security Act, and our regulations. We will continue to publish instructions, as quickly as possible, and evaluate our procedures to streamline our processes."

 

Rick

 

 

 

 

 

[Rick]

Lambda Legal Sues Social Security Administration on Behalf of Texas Lesbian Widow

 

Today, 22 October 2014, Lambda Legal filed a federal suit, Murphy v. Colvin, against the Social Security Administration (SSA) on behalf of Kathy Murphy, a Texas widow denied spousal benefits after the death of her wife, and on behalf of the National Committee to Preserve Social Security and Medicare (the National Committee), arguing that denying Social Security benefits to same-sex spouses because they live in states that discriminate against their marriages violates the US Constitution.

 

The Supreme Court struck down federal discrimination against same-sex spouses last year in United States v. Windsor; Lambda Legal argues that SSA cannot perpetuate the same kind of discrimination now and leave lesbian and gay spouses without the financial protections of social security as they age.

 

Susan Sommer, Director of Constitutional Litigation at Lambda Legal, said:

 

"SSA should not be telling widowed lesbians and gay men already grieving the loss of a spouse, 'You live in the wrong state so you don't get Social Security spousal benefits.' Thousands of same-sex spouses, like our client Kathy Murphy, have married, even though their home states refuse to recognize their relationships. Since Windsor, these aging lesbian and gay Americans believe that, at the very least, their marriages finally will be respected by the federal government. But, relying on discriminatory state marriage bans declared unconstitutional by an avalanche of courts around the country, SSA continues to deny same-sex spouses their benefits. Widows, widowers and retirees, wherever they live, need Social Security spousal benefits, earned through years of hard work, to support them as they age. They should not have to wait one more day to be treated with dignity by the federal government."

 

For more than 30 years, Texas residents Kathy Murphy, 62, and Sara Barker shared their lives together. Three decades after they first met, Kathy and Sara legally married in Massachusetts in 2010. Like other married couples, they hoped to grow old together and to live out their retirement years in safety, security, and dignity. Tragically, Sara lost her battle with cancer in March 2012 at age 62, leaving Kathy a widow. Because the couple lived in Texas, which refuses to recognize their marriage, SSA also won't recognize the marriage, denying Kathy spousal survivor's benefits earned by Sara over a life-time of work.

 

Max Richtman, President and CEO of the National Committee said:

 

"The basic tenets of the Social Security program are that if you contribute to the system throughout your working life, you and your family will receive those earned benefits in retirement, death or disability. There is no rational reason why a couple living in Texas, or any other state, should continue to face this type of discrimination including the denial of the Social Security spousal benefits they have earned throughout their working lifetimes. It's long past time to right this wrong."

 

The National Committee, the organizational plaintiff in the case, is a Washington, DC-based advocacy organization dedicated to protecting Social Security for all generations and communities, including same-sex couples and their families. Kathy Murphy is a member of the National Committee.

 

The complaint filed in the District of Columbia federal district court today by Lambda Legal and co-counsel Dechert LLP argues that SSA's refusal to recognize the marriages of same-sex couples who live in states that discriminate against their marriages, and denial of Social Security benefits to deserving spouses, violates the federal Constitution. SSA should not rely on discriminatory state marriage bans that have been declared unconstitutional by state and federal courts far and wide throughout the country as the basis to deny hard-earned spousal benefits.

 

Rick

 

 

 

 

 

[Rick]

LGBT Legal Group Sues VA to Provide Benefits to Same-Sex Couples

 

A prominent LGBT legal group filed a lawsuit against the Obama administration on 18 August 2014 to compel the Department of Veterans Affairs to provide spousal benefits to married same-sex couples in non-marriage equality states.

 

Lambda Legal, along with Morrison and Foerster LLP, filed the lawsuit, American Military Partner Association v. McDonald on behalf of the LGBT military group, AMPA. The defendant in the lawsuit, which was filed before the U.S. Court of Appeals for the Federal Circuit, is Secretary of Veterans Affairs Robert McDonald.

 

The litigation alleges the Obama administration's decision to withhold certain spousal benefits to married same-sex couples in states without marriage equality runs afoul of the US Supreme Court's decision against the Defense of Marriage Act in Windsor v. United States.

 

"Having weathered the federal government's past, longstanding discrimination against them, lesbian and gay veterans and their families find themselves once again deprived of equal rights and earned benefits by the government they served and the nation for which they sacrificed," the complaint says.

 

Susan Sommer, director of constitutional litigation at Lambda Legal, said the lawsuit is necessary to ensure the country provides gay and lesbian veterans the benefits to which they're entitled. "Married veterans and their spouses, wherever they live, need critical veterans benefits, earned through years of often perilous service, to take care of their families," Sommer said. said. "No member of our community should be left behind just because their home state continues to discriminate against their marriage."

 

After the Supreme Court struck down Section 3 of DOMA, which prohibited federal recognition of same-sex marriages, the Justice Department set a goal to extend marital benefits to same-sex couples to the furthest extent possible under current law.

 

In the case of spousal veterans benefits, the administration has determined it can grant them to married same-sex couples in states with marriage equality, but not to such couples living in states where their unions aren't recognized. The section of US code governing veterans benefits, 103© of Title 38, looks to the place of residence, not the place of celebration, in determining whether a couple is married.

 

In lieu of providing all spousal veterans benefits to same-sex couples in states without marriage equality, the administration developed a workaround so that these couples would still be eligible for 1) transfer of GI-Bill education benefits to dependents; 2) access to group life insurance and family insurance group life insurance programs; 3) and eligibility for dependent and survivor education assistance. Moreover, the VA instituted a rule change to allow joint burial for the same-sex partners of veterans in domestic partnerships or civil unions.

 

According to the American Military Partner Association, veterans in non-marriage equality states still won't have access to important benefits like ChampVA (health care for spouses of disabled veterans), higher disability compensation for disabled veterans with dependents, full access to VA home loans, and many survivor benefits for widows.

 

For these benefits, the Obama administration has called for a legislative fix in the form of a change in law approved by Congress.

 

But even prior to the final determination from the Obama administration on the issue, LGBT advocates, including Senator Mark Udall (D-Colorado), insisted that the VA should be able to provide all benefits to same-sex couples following the Supreme Court's decision.

 

Stephen Peters, president of the American Military Partner Association, said the continued withholding of veterans spousal benefits to married same-sex couples is unacceptable. "It is simply unacceptable to see AMPA's members not only discriminated against in their home states where their marriages are disrespected but also turned down by the federal government for basic veterans benefits for their spouses," Peters said. "Our members will be denied pension and survivors benefits, home loan guarantees and other earned veterans benefits."

 

A spokesperson for VA declined to comment on the basis that the department cannot comment on pending litigation.

 

Rick

 

 

 

 

 

 

 

 

[Rick]

Lesbian Widow Wins Fight for Social Security Benefits

 

A lesbian widow has prevailed in her fight to obtain Social Security benefits previously denied to her on the basis that her state of residence wouldn't have recognized her same-sex marriage at the time of her spouse's death, the LGBT group representing her announced today, 4 December 2014.

 

The SSA paid Deborah Tevyaw, a 56-year-old Rhode Island resident, more than $30,000 in back benefits on 1 December 2014 after a three-year battle, according to GLAAD. The settlement followed a lawsuit, Tevyaw v. Colvin, filed on her behalf in September by the New England-based LGBT group, but was reached through independent discussion with the agency as that litigation proceeded.

 

The LGBT group sought spousal disability benefits and a lump sum death payment on behalf of Tevyaw from the SSA after the death of her spouse, Patricia Baker, in 2011. A career Rhode Island corrections officer, Baker died in 2011 after being diagnosed with lung cancer. Although the couple married in Massachusetts in 2005, the SSA asserted Tevyaw wasn't eligible for benefits at first on the basis of the Defense of Marriage Act. But even after the Supreme Court ruled Section 3 of DOMA was unconstitutional, the agency continued to deny Tevyaw benefits on the basis that Rhode Island wouldn't have recognized her marriage at the time of Baker's death.

 

Contrary to the claims of the SSA, GLAD asserted the agency should recognize Tevyaw's marriage because the law looks to whether courts in the state of domicile would find a couple "validly married." Carisa Cunningham, a GLAD spokesperson, said she could not share any document on the agreement, but maintained the SSA changed the date at which they say Rhode Island would recognize as valid a same-sex marriage from another state. Although the agency originally claimed that 1 August 2013 was that date, it now says 20 September 2007 is the correct date.

 

GLAAD is proceeding with the case because it thinks Rhode Island should have to recognize Massachusetts same-sex marriages back to May 2004 when same-sex marriages were legalized in that state, not just 2007. Moreover, the agreement only affects Rhode Island, not any other state, and the organization is still using the litigation as a means to ensure the flow of Social Security spousal benefits to same-sex couples throughout the country.

 

Despite the Supreme Court ruling against DOMA, the Obama administration has determined that individuals in same-sex marriages are ineligible for spousal Social Security benefits - as well as spousal veterans benefits - if they live in a state without marriage equality. For those benefits, US code looks to the state of residence, not the state of celebration, to determine whether a couple is married. But LGBT advocates have insisted that continuing to withhold those benefits violates the spirit of the DOMA ruling.

 

When the lawsuit was filed, one of the paragraphs in the prayer for relief, according to GLAAD, enabled the judge reviewing the case to make a ruling requiring the Obama administration to afford spousal Social Security benefits to married same-sex couples in non-marriage equality states. Mary Bonauto, GLAAD's civil rights project director, said in a statement the time has come for SSA to begin payments to married same-sex couples throughout the country regardless of their state of residence.

 

Rick

 

 

 

 

 

[Rick]

Social Security Benefits to be Retroactive

 

"Today, 20 August 2015, in a status conference with Lambda Legal in federal court in Chicago, in the case of Murphy v. Colvin, the Department of Justice announced that the Social Security Administration (SSA) will apply the US Supreme Court's recent landmark marriage ruling in Obergefell retroactively, and process pending spousal benefits claims for same-sex couples who lived in states that did not previously recognize their marriages.

 

"According to the Department of Justice, the new policy will apply to previously-filed claims still pending in the administrative process or litigation. The expected policy change follows the Supreme Court's June decision striking down marriage bans across the country.

 

"SSA has not announced when this policy change will be posted and implemented, but we look forward to reviewing the details and working with the agency to ensure that those who had been wrongly denied in the past will not have to wait longer to have their relationships treated with dignity by the federal government."

 

Last year, Lambda Legal had filed federal lawsuits on behalf of Dave Williams, a widower, formerly of Arkansas, now a Chicagoan, who was denied spousal benefits after the death of his husband; and Kathy Murphy, a Texas widow denied spousal benefits after the death of her wife; as well as the National Committee to Preserve Social Security and Medicare.

 

Rick

 

 

 

 

 

[Rick]

82 Year-Old Vet Demands Name Be Cleared after 1955 Dishonorable Discharge

 

82 year-old Donald Hallman is among an estimated 114,000 men and women who were booted from the military over their homosexuality between WWII and the end of DADT. Hallman appeared on CNN yesterday. September 2015, to demand that his record be cleared of its "dishonorable" notation. The "Dallas Morning News" agrees in an editorial published today, 10 September 2015, which supports a bill pending before Congress:

 

To set things right, gay veterans must apply individually to revise their discharge status. It is time consuming and puts the onus on the veteran to prove that the dishonorable discharge status was wrongfully assigned. Many must hire lawyers at their own expense. The process can take years. Straight veterans with identical service records have faced no such hurdles. According to a recent "New York Times" report, the Department of Defense upgraded 80 percent of the nearly 500 requests submitted since 2011. Under current military procedures, the Veterans Administration may refuse benefits when a discharge was the result of "aggravating" circumstances "“ misconduct leading to a general court martial, or when a service member deserts, refuses orders or refuses to wear the uniform. For those veterans whose sexual orientation was the sole reason for the reduced status, the frustration factor must be enormous. They've given years of service in support of their country's military missions, only to be told that it doesn't count "“ for reasons that never were the military's business to begin with.

 

Rick

 

 

 

 

 

[Rick]

Lesbian Widow's Lawsuit Seeking Benefits from FedEx to Proceed

 

A federal judge has allowed a gay benefits case, Schuett v. FedEx, to proceed against FedEx. A federal court in California has ruled a lawsuit can proceed against shipping giant FedEx for withholding pension benefits to the same-sex partner of a deceased worker. US District Judge Phyllis Hamilton, a Clinton appointee, refused on Monday, 4 January 2016, to throw out the case in a 19-page decision despite objections from the shipping company that withholding the benefits is justified because the Defense of Marriage Act was in effect at the time the employee died.

 

"The court finds that plaintiff has adequately alleged that FedEx has violated Title I of ERISA by acting contrary to applicable federal law and failing to provide plaintiff with a benefit mandated by ERISA, and that she is entitled to pursue equitable relief to remedy that violation," Hamilton wrote. "The court is not persuaded at this stage of the case and under the facts alleged in the complaint that there is any basis for denying retroactive application of Windsor."

 

The lawsuit was filed in January 2014 by Stacey Schuett, who was told by FedEx she wouldn't be eligible for company survivor benefits after her partner, Lesly Taboada-Hall, was diagnosed with terminal cancer. Taboada-Hall had been a FedEx employee for 26 years and was fully vested in her pension. The company plan on benefits comported with the Defense of Marriage Act, which prohibited federal recognition of same-sex marriage before it was struck down by the Supreme Court in 2013.

 

The couple, who had been together 30 years, married on 19 June 2013 in their Sebastopol CA home before their two children, close family, and friends. Taboada-Hall died one day later on 20 June. The US Supreme Court struck down Section 3 of DOMA in an historic decision six days after that, on 26 June 2013, but that wasn't enough for FedEx to afford the benefits to Schuett.

 

Of the three claims made in the lawsuit, the claim that succeeded relied on the Employee Retirement Income Security Act, or ERISA, which the Labor Department interpreted after the DOMA decision to grant same-sex spouses access to pension benefits. Because Edith Windsor, the plaintiff in the DOMA case, retroactively received her refund of $363,000 in estate taxes following the Supreme Court decision against DOMA, the judge reasoned ERISA benefits should be retroactively applied as well.

 

Representing Scheutt was the National Center for Lesbian Rights, the Berkley-based Feinberg Jackson Worthman & Wasow, the Berkley-based Civil Rights Education & Enforcement Center and the Sebastopol-based Birnie Law Office.

 

 

Rick

 

 

 

 

 

[Rick]

EEOC Files First Suits Challenging Sexual Orientation Discrimination as Sex Discrimination

 

In two separate lawsuits, the federal agency, EEOC, charges that a gay male employee and a lesbian employee were subjected to hostile work environments because of sex.

 

Washington - The US Equal Employment Opportunity Commission (EEOC) announced today, 1 March 2016, that it has filed its first two sex discrimination cases based on sexual orientation. The federal agency's Philadelphia District Office filed suit in District Court for the Western District of Pennsylvania against Scott Medical Health Center, and, in a separate suit, in District Court for the District of Maryland, Baltimore Division, against Pallet Companies, dba IFCO Systems NA.

 

The Complaints are:

EEOC v. Scott Medical Health Center (Pennsylvania)

EEOC v. Pallet Companies (Maryland)

 

Rick

 

 

 

 

 

 

[Rick]

SSA Grants Spousal Benefits to Texas Widow

 

Today, 8 March 2016, in Murphy v. Colvin, the federal case in which a Texas widow sued for Social Security spousal benefits (second case cited in this thread), Lambda Legal has announced final resolution of this case. There is a notice of voluntary dismissal on the docket.

 

In Murphy v. Colvin, Lambda Legal announced the resolution of its federal lawsuit against the Social Security Administration (SSA) brought on behalf of Kathy Murphy, a Texas widow denied spousal benefits after the death of her wife (because at the time, Texas refused to recognize same-sex marriages), and the National Committee to Preserve Social Security and Medicare (the National Committee).

 

Susan Sommer, National Director of Constitutional Litigation at Lambda Legal, said:

 

The Social Security Administration has finally adjusted Kathy's monthly SSA benefit to recognize the reality that she was married to her wife, Sara, and is a widow entitled to the same treatment as other survivors.

 

We are also pleased to announce that the SSA has finally updated its instructions to its staff in accordance with the historic Obergefell v. Hodges ruling last June. SSA has also issued other guidance to staff to manage claims from the LGBT community. These instructions include important steps to recognize the marriages of same-sex couples from the date of their marriages, regardless of the state where the couple lived.

 

Rick

 

 

 

 

 

[Rick]

Social Security Lifts Penalty on Overpayment for Same-Sex Couples

 

Faced with a lawsuit seeking a change in policy, the Social Security Administration has lifted the penalty on same-sex couples who received overpayment of benefits after the 2013 Supreme Court ruling against the Defense of Marriage Act. GLBTQ Legal Advocates & Defenders, one of the organizations behind the lawsuit, announced the change in a statement on 13 April 2016, crediting members of Congress led by Rep. Mark Takano (D-CA) and Sen. Elizabeth Warren (D-MA) for pushing the change.

 

The change affects individuals in same-sex marriages who received Supplemental Security Income benefits at a higher rate with DOMA in place because they were counted as single. If these individuals continued to receive those benefits erroneously at the same higher level after the 2013 ruling against the law, they won't be forced to return the overpayment. Same-sex couples who received overpayment as a result of the error are now able to receive a waiver, or forgiveness of those overpayments between 16 March 2016 through16 March 2018, even without having to formally apply for relief in most cases. Local offices no longer have authority to deny a waiver and denials must first be reviewed by the Social Security Administration's Central Office.

 

The class-action lawsuit seeking the change, Held v. Colvin, was filed last year by GLAD, Justice in Aging, and the DC-based law firm of Foley Hoag LLP, against the Social Security Administration, on behalf of same-sex couples forced to repay Social Security benefits - or those who will be forced to repay them.

 

The case was pending before the 9th Circuit Court of Appeals at the time the Social Security Administration announced the policy change.

 

Rick

 

 

 

 

 

[Rick]

OPM Issues Final Same-Sex Spouse Rule

 

On 14 April 2016, the US Office of Personnel Management announced that it has revised the definition of the term "spouse" in federal regulations to strengthen an earlier policy change allowing federal employees with same-sex spouses to use the Family and Medical Leave Act. In a statement, OPM said that in an action that took effect on 7 April 2016, the new definition replaces language from the Defense of Marriage Act that defined spouse as a "legal union between one man and one woman."

 

The statement notes that in October 2013, OPM issued a memorandum to all federal agencies requiring that they comply with a US Supreme Court ruling handed down four months earlier overturning DOMA. The memorandum said that, among other things, the term spouse would be defined as a "partner in any legally-recognized marriage" and federal employees with same-sex married spouses could take leave under the Family and Medical Leave Act. The latest change "codifies the new definition in federal law," the OPM statement says.

 

Rick

 

 

 

 

 

[Rick]

New SSA Guidance on Spousal/Survivors Benefits for Married LGBTs

 

SSA Fact Sheet:

 

"This guidance can help individuals in same-sex marriages who were denied benefits because their marriage to a spouse of the same sex wasn't properly recognized.

 

"On 1 March 2017, the Social Security Administration (SSA) announced it would reopen any decision to deny spousal or survivors benefits to a same-sex spouse based on a discriminatory marriage ban, which resulted in a loss of benefits to the individual who led the claim."

 

Rick

 

 

 

 

 

[Rick]

US Social Security Admininistration Sued Over Denial of Survivor's Benefits

As of 25 September 2018, a 63-year-old lesbian woman is suing the US Social Security Administration for failing to recognize her relationship with her deceased partner of 27 years, who died in 2006 before same-sex couples in Washington State were allowed to marry. The lawsuit, brought by Lambda Legal on behalf of Helen Thornton, asks the federal District Court for the Western District of Washington to rule that the Social Security Administration’s exclusion of same-sex couples from survivor’s benefits is unconstitutional.

Thornton and her late partner, Marge Brown, were in a committed relationship from 1979 until 2006, when Brown died of cancer at age 50. Social Security generally requires that a couple be married nine months before a spouse dies in order for the surviving spouse to qualify for survivor’s benefits, but same-sex couples were ineligible to marry until 2012 in Washington State.

“The federal government is requiring surviving same-sex partners like Helen to pass an impossible test to access the benefits that they’ve earned through a lifetime of work: they need to have been married to their loved ones, but they were barred from marrying by discriminatory laws then in existence,” Lambda Legal Counsel Peter Renn said in a statement. “We are beyond the day when the government can deny equal treatment to same-sex couples. But, by withholding these benefits, the federal government is breathing life into the same discriminatory marriage laws that the Supreme Court has already struck down.”

The lawsuit argues that same-sex partners who were unable to marry should be treated like straight spouses in common-law marriages. In addition, the lawsuit asks not only that the Social Security Administration recognize Brown and Thornton’s relationship and Thornton’s eligibility for survivor’s benefits, but also asks the court to issue an injunction preventing the agency from denying those benefits to similarly-situated same-sex couples, and, should the case be successful, pay attorney’s fees and other legal costs incurred by Thornton in the process of bringing her lawsuit.

Rick

 

[Rick]

Social Security Sued by Gay Widower over Survivor's Benefits

A gay man is suing the Social Security Administration after being denied spousal survivor benefits when his husband died in 2014. Michael Ely and James Taylor of Arizona were together since 1971, when Michael was 18 and James was 20.

“My husband was the love of my life,” Michael said. “Like other committed couples, we built a life together and cared for each other in sickness and in health.” In 2014, they got married just after Arizona’s ban on same-sex couples marrying was struck down by a federal court. About six months later, Taylor died of cancer.

Michael, who took care of James when he was sick, applied to get James’s Social Security benefits. They were married, James paid into Social Security his whole life, and Michael is now 65-years-old.

The only problem? The Social Security Administration requires couples to be married for nine months before they can access survivor benefits, a requirement that Michael and James were legally barred from meeting.

“The federal government is requiring surviving same-sex spouses like Michael to pass an impossible test to access benefits earned through a lifetime of work,” said Peter Renn of Lambda Legal, which is representing Michael in his federal lawsuit against the Social Security Administration.

Rick

 

[Rick]

Yet Another Federal Suit against Social Security Administration for Survivor's Benefits

On 13 December 2018, Lambda Legal filed a motion on behalf of a 63-year-old gay man, arguing that the Social Security Administration’s denial of spousal survivor’s benefits to him, on the grounds that he was not married long enough, despite marrying on the very first day when he was legally allowed to do so, is unconstitutional.

The lawsuit, in the US District Court for the District of New Mexico, filed on behalf of Anthony Gonzales, who was in a 15-year committed relationship with his husband, argues that SSA’s imposition of a nine-month marriage requirement for social security survivor’s benefits is unconstitutional where same-sex couples were not able to be married for the nine months because of discriminatory marriage laws.

Per the federal docket, this case was originally filed in June 2018 and is assigned to Senior District Judge Robert C. Brack with referrals to Magistrate Judge Kevin R. Sweazea. Today's filing by Lambda Legal, with attachments, is available here:

Plaintiff’s Motion to Reverse Agency Decision and Memorandum in Support
http://bit.ly/2EvQ2mX

Lambda Legal, in its press release, noted that this is the third federal case it has filed against the SSA on this very same point, (the previous two having already been filed in Arizona and Washington State). Anthony and his husband, Mark Johnson, got married literally on the very first day they could in Albuquerque NM on 27 August 2013. Tragically, cancer claimed Mark’s life six months later. In the interval, because of his age, Anthony could not otherwise claim SSA survivor's benefits until he had turned 62.

Rick

 

[Rick]

North Carolina: Lambda Legal Files Fourth Federal Suit against SSA for Widower Seeking Spousal Survivor Benefits

Today, 17 January 2019, Lambda Legal filed a motion on behalf of a 75-year-old gay man arguing that the Social Security Administration’s denial of spousal survivor’s benefits to him, on the grounds that he was not married for long enough (they impose a 9-month minimum), despite discriminatory marriage laws that prevented him from marrying earlier, is unconstitutional.

Even though the bans have been struck down and same-sex couples today are able to marry nationwide, the harms endure. Fred Colosimo and his husband, Harvey Lucas, in a committed 43-year relationship, traveled from North Carolina to New Jersey in November 2013 to be married, just two weeks after that state’s ban had been struck down, because North Carolina would not let them marry. Sadly, Harvey died in June 2014, seven months later.

This federal lawsuit is the fourth Lambda Legal has joined against Social Security in the past five months, including lawsuits filed in Washington State, Arizona, and New Mexico.

The North Carolina case, "Colosimo v. Berryhill," is here:
https://www.lambdalegal.org/in-court/cases/colosi...

The Motion for Summary Judgment is here:
https://www.lambdalegal.org/in-court/legal-docs/c...

The Washington State case, "Thornton v. Berryhill," is here:
https://www.lambdalegal.org/in-court/cases/thornt...

Its First Amended Complaint, filed on 12 November 2018, is here:
https://www.lambdalegal.org/in-court/legal-docs/t...
The original complaint was filed in September.

The Arizona case, "Ely v. Berryhill," is here:
https://www.lambdalegal.org/in-court/cases/ely-v-...

Its Complaint, filed on 20 November 2018, is here:
https://www.lambdalegal.org/in-court/legal-docs/e...

The New Mexico case, "Gonzales v. Berryhill," is here:
https://www.lambdalegal.org/in-court/cases/gonzal...

Plaintiff's Motion to Reverse Agency Decision, filed 13 December 2018, is here:
https://www.lambdalegal.org/in-court/legal-docs/g...

Rick

 

[Rick]

Washington State: Lesbian Widow, Denied SSA Survivor Benefits, Has Sued

A woman who was denied survivor benefits from Social Security because she was in a relationship with another woman has sued. Lawyers for Helen Thornton of Olympia WA appeared in federal court in Tacoma last week to ask a judge to overturn the Social Security Administration’s (SSA) refusal to grant her survivor benefits after she was with her partner, Marge Brown, for 27 years.

Brown and Thornton met in 1978 and moved in with each other in 1979. Over the next 27 years, the women bought a house, raised a son together, and were generally recognized by their community as a family. Thornton helped put Brown through graduate school by working at a grocery store, and when Brown was diagnosed with ovarian cancer in 2003, Thornton cared for her for three years. In 2006, Brown passed away, six years before Washington State recognized marriage equality in 2012. Brown left everything to Thornton in her will.

“We would have gotten married had we been allowed to get married,” Thornton said. Even though their finances were intertwined and Thornton made sacrifices for their relationship, like married couples do, she was denied survivor benefits when she applied in 2015, just before she turned 60.

Social Security requires that a couple be married for nine months in order for a widow to be eligible for survivor benefits. Since Brown and Thornton were unable to be married, the SSA is refusing to give Thornton the nearly $1000 a month in benefits to which she would otherwise be entitled.

Lambda Legal is representing her in the case, and said in a statement, that SSA is using an unconstitutional law, Washington’s old ban on marriage equality, to deny Thornton benefits she is due, benefits that the couple paid for. “Heterosexual surviving spouses are able to count on the critical financial protection of survivor’s benefits after the death of their loved ones, but SSA casts surviving same-sex partners like Helen aside, even though they paid the same lifetime of contributions from their paychecks,” said Peter Renn of Lambda Legal in a statement.

Rick

 

[Rick]

USA: Federal Judge: Same-Sex Partners Have A Right to Social Security Survivor's Benefits

Per Lambda Legal:

On 31 January 2020, a federal magistrate judge recommended striking down as unconstitutional the US Social Security Administration’s (SSA’s) categorical denial of survivor’s benefits to surviving same-sex partners who were barred from marrying due to discriminatory state marriage bans. While several states began allowing same-sex couples to marry beginning in 2003, and the US Supreme Court struck down all remaining state bans in 2015, for many couples that freedom came too late.

Today’s development came in Thornton v. Saul (formerly Thornton v. Berryhill), the lawsuit Lambda Legal filed in US District Court for the Western District of Washington State in September 2018, against SSA on behalf of Helen Thornton, a 64-year-old lesbian seeking spousal survivor’s benefits based on her relationship with her partner of 27 years, Marge Brown, who died in 2006 before same-sex couples in the State of Washington were able to marry.

The recommendation by the federal magistrate judge now goes before a federal district judge, who may accept, reject, or modify the recommendation. The magistrate judge also recommended the certification of a class action, ordering SSA to provide surviving same-sex partners barred from marriage across the country with a pathway to qualify for benefits.

Ms. Thornton, 64, applied for survivor’s benefits in 2015, shortly before she would have otherwise been eligible to begin receiving survivor’s benefits at age 60, based on Ms. Brown’s work record. SSA denied her application given the fact that she and Ms. Brown were not married at the time of Ms. Brown’s death in 2006, even though that was impossible in the State of Washington, which did not permit same-sex couples to marry until 2012.

Lambda Legal’s attorneys working on the case are: Peter Renn, Tara Borelli, and Karen Loewy. They are joined by Robert Thornton and Linda Larson with Nossaman LLP.

Rick

 

[Rick]

USA: Same-Sex Spouses Win Equal Access to SSA Survivor Benefits

On Wednesdy, 27 May 2020, in Ely v. Saul, (formerly Ely v. Berryhill), a federal court in Arizona ruled that the Social Security Administration must consider claims for survivor’s benefits by same-sex spouses who were unable to be married for at least nine months because of state marriage bans.

The US District Court for Arizona ruled that the denial of benefits to Ely was unconstitutional, as the law itself that had kept them from marrying had been found to be unconstitutional. The court also gave the case class-action status, providing a pathway for other surviving spouses to seek benefits.

Rick

 

[Rick]

Important Generalized Legal Notice: RE: Social Security Survivor's Benefits

Please take note if this information pertaining to the "Thornton" ruling may apply to your own personal situation.

Per Equality Case Files:

On 11 September 2020, in "Thornton v. Commissioner of Social Security," a federal district court in Washington State ruled that the Social Security Administration may not deny surviving same-sex partners who were barred from marriage from accessing Social Security spousal survivor’s benefits. Though these principles should apply to all surviving partners in this position, the court’s ruling directly applies only to those who have applied for survivor’s benefits. To maximize the possibility that you may be protected by this ruling, you may wish to consider applying for benefits immediately and before the district court enters final judgment, which could occur as early as 9 October 2020.

For more detailed information, see:
https://www.lambdalegal.org/ssa-benefits?fbclid=I...

Rick

 

[Rick]

Social Security: Same-Sex Survivors Seeking Benefits Win Federal Lawsuits by Default

On Monday, 1 November 2021, a pair of surviving partners who were in long-term same-sex relationships, but unable to receive Social Security benefits due to now-overturned state marriage bans against same-sex couples, are declaring victory in their litigation seeking that compensation. As of today's date, the US government has withdrawn its appeals of district court rulings decided in the plaintiffs' favor.

The Biden administration dismissed its appeals before the 9th Circuit of Court of Appeals in two separate cases that had been filed by the LGBTQ group, Lambda Legal, which had argued in these nationwide class-action lawsuits that access to benefits for these survivors is consistent with the US Supreme Court’s nationwide marriage equality ruling of 2015, "Obergefell v. Hodges." Karen Loewy, senior counsel and senior strategist for Lambda Legal, said in a statement that the decision by the US Department of Justice and the Social Security Administration to withdraw their appeals against the plaintiff-survivors brings relief that “is almost palpable.”

One lawsuit was filed by Helen Thornton of Washington State, a surviving partner who sought benefits based on her same-sex relationship of 27 years. Thornton’s partner, Marge Brown, died in 2006, four years before Washington state legalized same-sex marriage. Thus, despite the relationship, the couple was never able to legally marry prior to Brown's death.

The other lawsuit was filed by Michael Ely of Arizona, who sought benefits after being in a relationship for 43 years and then marrying his partner in 2014, immediately after Arizona’s ban on same-sex marriage had been struck down. However, Ely’s spouse, James “Spider” Taylor, died of cancer six months into their marriage, which made Ely unable to access Social Security survivor benefits because the marriage was in effect less than the 9-month minimum.

In both lawsuits, in response to said litigation, federal district courts in Arizona and Washington State had struck down the federal government’s refusal to grant Social Security survivors benefits to these survivors as being unconstitutional. Because Social Security is a federal benefit, access to survivor's benefits is under federal jurisdiction, even though state law had interfered with the litigants' ability to marry.

According to Lambda Legal, other surviving same-sex partners who were barred from marrying when their partners were alive will now also have a path to benefits, one which had previously been limited to people who had applied by November 2020.
https://www.washingtonblade.com/2021/11/01/surviv....

Rick

 

[Rick]

Veterans Affairs Expands Eligibility of LGBTQ Spousal Survivor Benefits

The Department of Veterans Affairs has closed a gap in survivor benefits for those who were not able to marry a same-sex, now-deceased veteran spouse prior to the Supreme Court’s 2015 Obergefell v. Hodges marriage equality ruling, and therefore had subsequently been deemed to have not been married long enough to qualify.

The VA’s minimum length-of-marriage requirement is one year, and higher benefits are available to survivors who were married to a veteran spouse for eight years or more. But a newly-announced VA policy recognizes that many couples who were prevented from marrying due to various states’ anti-marriage-equality laws were actually in marriage-like relationships before the Supreme Court struck those laws down in Obergefell.

Under the new policy, surviving spouses can demonstrate that they were in marriage-like relationships by providing evidence of such, like proof of a commitment ceremony, a joint banking account, or the joint purchase of a house, according to a VA press release.

The VA’s decision is effective immediately, and survivors can apply now for these benefits. Eligible surviving spouses who apply within the next year will receive benefits backdated to 11 October 2022. Otherwise, the benefits will not be retroactive.
https://www.advocate.com/news/2022/10/20/more-lgb...

Rick