EMs Issued on Same Sex Marriages

Empire Justice Center July 31, 2022

The Social Security Administration (SSA) has issued two Emergency Messages (EMs) implementing court decisions requiring payment of benefits to survivors of same-sex relationships who were unable to marry prior to the number-holder’s death due to an unconstitutional state law prohibiting same-sex marriage.


EM-21007 REV 2 provides instructions for handling claims, appeals, and reopening requests based on the decision in Thornton v. Commissioner of Social Security, 2:18-cv-01409-JLR (W.D. Wash.). A nation-wide class action, it prohibited SSA from denying benefits without determining whether the survivors of same-sex relationships would otherwise be eligible for widow(er)’s benefits but were prevented from marrying prior to November 25, 2020. The EM provides a series of questions, as well as examples, to help adjudicators establish whether the couple would have been married but for the unconstitutional state law.


EM-20046 REV 5 implements Ely v. Saul, No. CV-18-0557-TUC-BGM (D. Ariz.), which prohibits SSA from denying benefits to the surviving spouse of a same-sex ceremonial marriage who would otherwise be entitled to widow(er)’s benefits but for the nine-month marriage requirement of 42 U.S.C. § 416(c)(1). SSA must consider whether the couple would have been married sooner but for an unconstitutional state law that prohibited same-sex marriage. This EM also provides guidance for evaluating the circumstances that prevented the couple from meeting the nine-month duration requirement, including examples.


Lambda Legal, along with local firms, litigated the claims that resulted in these EMs, which have had a profound effect on surviving spouses who would otherwise be without these important benefits. The New York Times profiled Helen Thorton, one of the plaintiffs, who had been with her spouse for thirty years but was unable to marry her before she died in 2006, six years before Washington State made same-sex marriage legal in 2012. Ms. Thorton, who had struggling financially on just her own retirement benefits, had her income nearly double when the litigation was settled. And she received a retroactive award of $72,000 for the years that SSA had denied her application. Similarly, Anthony Gonzalez was finally able to marry his partner in New Mexico in 2013, as soon as same-sex marriage was legalized. But his spouse died six months later. In financial straits, Mr. Gonzalez applied for but was denied widower’s benefits based on the nine-month marriage requirement. His experience was cited in the Ely. He is now receiving survivor’s benefits and received a substantial retroactive payment.  


Lambda Legal encourages surviving same-sex partners to apply for benefits if they might be eligible. It has posted information to guide applicants.