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Ask Lambda Legal: LGBT Seniors

Tuesday Feb 25, 2014

Q: My partner and I have been together for more than 30 years, and as we advance in age, we're wondering: will we be able to get each other's Social Security benefits if one of us lives longer than the other?

A:
As our community ages, additional concerns may arise with regard to discrimination because we are gay, lesbian, bisexual or transgender. Historically, LGBT senior citizens have been particularly vulnerable when it comes to exercising their right to federal benefits like Social Security, which are partly tied to whether the government recognizes you as spouses.

The demise of DOMA marks a turning point in the ability of married same-sex couples to access Social Security retirement and survivor's benefits. Although the Social Security Administration (SSA) is still working out the full scope of protections available to claimants with same-sex spouses, some protections are clear. For example, SSA is already processing claims for retirement benefits, lump sum death benefits, and spousal survivor benefits for couples who were validly married and who live in a state that respects their marriage.

SSA continues to work with the Department of Justice to determine how it will treat claims by married claimants who live in a state that does not respect their marriage or by claimants who have a civil union or registered domestic partnership, among other issues. In the meantime, SSA strongly encourages anyone who thinks they might meet the eligibility requirements for spousal benefits to go ahead and apply regardless of where they live. There is no penalty for applying, even if SSA later determines that you are not eligible, and applying now starts the clock from which potential benefits will begin if they are granted. SSA has set up a special section of its website to address post-DOMA questions, which you can find here.

For transgender spouses, SSA has an unfortunate policy of referring all claims for spousal benefits to its regional counsel offices for review. This policy often results in unnecessary delays and errors as the counsel's office evaluates the validity of the marriage. Lambda Legal's Transgender Rights Project filed suit on behalf of Robina Asti, a 92-year-old transgender woman who was denied survivor benefits by SSA after her husband's death. The agency denied her benefits after it determined that she was "legally male" at the time of their marriage despite her three decades of living as a woman and all the legal documents to the contrary. TWatch a moving video that tells Robina's moving and unfortunate story here.

If you feel you have been discriminated against based on your age, sexual orientation, gender identity or HIV status, or have questions about your ability to seek Social Security spousal benefits, please contact our Legal Help Desk.

Founded in 1973, Lambda Legal is the oldest and largest national legal organization whose mission is to achieve full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.

Comments

  • CaliforniaGuy, 2014-02-26 13:20:29

    While I appreciate the work that the SSA is doing to roll out new procedures, it’s taking much too long. There are only 6 types of actions they are processing. They are holding all others, including Medicare-related actions. Not knowing when or if they will process all others causes financial uncertainty and harm (i.e. out-of-pocket costs). It’s now been over 6 months since they started addressing these issues, meanwhile we continue to be in limbo.


  • , 2014-05-27 15:31:10

    My spouse died 10/01/13. We were both Ca RDP since 2002 and we were married 7/03/13 as soon as it was possible. We were together for more than 25 years. But because of the 9-month rule regarding SS survivor benefits, I haven’t received the survivor benefits. My claim is pending with SSA. The loss of the love of my life and my financial crisis, it is very difficult. Has anyone heard anything new regarding the SSA and Fed DOJ making any decisions about our claims?. I haven’t had anyone to talk to about this. I did receive the one time $255 death benefit back in January, 2014. But no news about the spousal SS survivor benefits.


  • , 2014-06-25 15:49:56

    Well, on June 20, 2014, the Social Security Admin. had a News Release that said SS has published new instructions that allow the agency to process more claims in which entitlement or eligibility is affected by a same-sex relationship. This latest policy development lets the agency recognize some non-marital legal relationships as marriages for determining entitlement to benefits. These instructions also allow Social Security to begin processing many claims in states that do not recognize same-sex marriages or non-marital legal relationships. This is such great news! This is what I had hoped would happen. I am looking forward to receiving my SS survivor benefits. It will make it possible for me to keep my house, buy wood for my wood stove, etc. And to live with dignity. After all, it is an earned benefit that gay people have been denied. What a relief. It is about Civil Rights.


  • , 2014-07-27 14:07:35

    I am now receiving my SS survivor benefits. What a relief! In my case, because Ca RDP, since 1/1/2005, can inherit without a will, my non-marital legal relationship is recognized as marriage for determining entitlement to benefits. It is so wonderful not to have to worry about having the basics of food, shelter, heat,etc. It is the right thing to do. Homosexual relationships have been regarded as less than for long enough. It has always been about civil rights.


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