Despite the legalization of same-sex marriage in the United States on June 26, 2015, the effects of longstanding discrimination against the gay and lesbian community continue to linger at both the state and federal level. Many states legalized same-sex marriage prior to June 26, 2015, Arizona being one of them, and that is exactly where this story begins…
Michael Ely and James Taylor met in the 1970s, and their relationship spanned decades. In 2007, the couple entered into a commitment ceremony in Arizona because Arizona did not recognize same-sex marriage at the time. When Arizona legalized gay marriage in 2014, Michael and James wed shortly thereafter, affording them the same legal rights and protections enjoyed by heterosexual couples in the eyes of the law… or so they thought…
Unfortunately, James died six months after marrying the love of his life. A grieving Michael filed for Social Security survivor benefits, but his claim was denied because the Social Security Act (42 U.S.C. §§ 416) requires the surviving spouse to have been married for at least nine (9) months prior to his or her spouse’s death. To be clear, this requirement applies to all married couples, both heterosexual and homosexual. Because Michael was unable to legally marry James before his death due to Arizona’s ban on gay marriage, James was told that he was not entitled to the survivor benefit.
Same-sex marriage was legalized nationwide a few months after James’ death, and Michael brought a class action lawsuit in federal court against the Social Security Administration. Michael’s class action was successful and gay and lesbian widows nationwide who are in Michael’s situation may now apply for Social Security survivor benefits if they fall into what is called the Ely class.
Those who fall into the Ely class are as follows: “All persons nationwide who (A) presented claims for and were denied, or will present claims for and be denied Social Security spousal survivor’s benefits based on not being married to a same-sex spouse for at least nine months at the time of the spouse’s death and (B) were prevented by laws prohibiting same-sex marriage from being married for at least nine months.” (See Notice of Class Action Order: Ely v. Saul)
Survivor benefits make a huge difference for widows irrespective of their sexual identity by putting food on the table and helping to maintain some semblance of “normalcy” after the passing of their significant other.
If you or a loved one are unable to obtain Social Security survivor benefits and believe that you fall into the Ely class, please contact our office at (732) 382-6070 to discuss your options with a knowledgeable elder law attorney.