More same-sex couples may be eligible for Social Security survivor benefits.

“I can finally breathe a sigh of relief that these benefits are now finally secure,” Mr. Ely said in a statement, “not only for me but for everyone else who found themselves in the same boat.”

The protections provided by these cases may also help people like Jim Obergefell, who was married for only three months. In 2015, he was at the center of the monumental Supreme Court ruling — Obergefell v. Hodges — that declared that the Constitution guaranteed a right to same-sex marriage, enabling couples across the country to marry even if their states had banned it. That followed a 2013 ruling, in United States v. Windsor, in which the court found that same-sex couples were entitled to federal benefits.

Mr. Obergefell, 55, said he would consider applying for survivor’s benefits when he reaches the eligible filing age, because his spouse, John Arthur — who died of A.L.S. in 2013 — may have earned slightly more than him. “I still remember the sting of being denied the minimal death benefit payout when John died,” he said, referring to the one-time lump-sum death payment of $255 from Social Security. “Not because I needed the money, but because it was a slap in the face to be told I wasn’t a valid surviving spouse.”

Surviving spouses or partners in these situations will have to illustrate to the Social Security Administration that they would have been married if the laws would have permitted it, legal experts said. The agency will also generally have to conclude that the marriage would have lasted at least nine months at the time of the partner’s death.

“It is sort of a necessary consequence of having wiped out the unconstitutional marriage restrictions that existed for so long,” said Mary L. Bonauto, civil rights director at advocacy group GLAD. “This is actually consistent with the kind of tasks that federal agencies have to do sometimes to get it right — they have to look into the individual circumstances sometimes, and this is one that really cries out for it.”

Legal experts said the agency might ask the survivor about a variety of issues. That could include whether they would have married if the laws didn’t bar same-sex unions, their living arrangements and whether they relied on each other for financial support. The agency may also ask whether they were named in one another’s wills, shared insurance policies or if they were registered as domestic partners.

As long as a deceased person worked long enough, widows and widowers generally may receive survivor benefits as early as age 60. (Disabled survivors may be eligible at age 50.) Survivors can collect on their partner’s earnings record if it is higher than their own retirement or disability benefit — or they can collect the benefits as a way to delay their own benefits, which they can collect later when they are worth more.

Article source: https://www.nytimes.com/2021/11/02/business/social-security-same-sex-survivor-benefits.html