Ask Lambda Legal: LGBT Seniors
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 regards 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. Watch 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.