Lambda Legal Sues Social Security Administration for Fourth Same-Sex Surviving Spouse Denied Survivor’s Benefits

“Application of Social Security’s nine-month rule here serves only to continue the harms that invalid marriage bans created. It’s past time for a change.”

(Charlotte, NC, January 17, 2019) – Lambda Legal today filed a motion on behalf of a 75-year-old gay man arguing that the Social Security Administration’s denial of spousal survivor’s benefits to him, on the grounds that he was not married for long enough despite discriminatory marriage laws that prevented him from marrying earlier, is unconstitutional. The lawsuit filed on behalf of Frederick Colosimo, who was in a 43-year committed relationship with his husband, in the U.S. District Court for the Western District of North Carolina, argues that SSA’s imposition of a nine-month marriage requirement for Social Security survivor’s benefits is unconstitutional where same-sex couples were not able to be married for nine months because of discriminatory marriage laws.

“Yet again, we go to court to get justice for same-sex spouses and partners who are unable to access Social Security survivor benefits because discriminatory marriage bans prevented them from marrying, and being married long enough, to meet Social Security’s nine-month requirement,” said Lambda Legal Counsel Tara Borelli. “Even though the bans have been struck down and same-sex couples today are able to marry nationwide, the harms endure. Fred and his husband, Harvey Lucas, traveled from North Carolina to New Jersey in November 2013 to get married – two weeks after that state’s ban was struck down, because North Carolina would not let them marry. Sadly, Harvey died in June 2014, seven months later.

“This lawsuit is the fourth Lambda Legal has joined against Social Security in the past five months – including lawsuits filed in Washington, Arizona and New Mexico – all underscoring the ongoing harm that a number of same-sex couples continue to experience from marriage bans,” Borelli added. “In all the cases, there is no question that these couples were in committed relationships and married or would have married as soon as possible. Application of Social Security’s nine-month rule here serves only to continue the harms that invalid marriage bans created. It’s past time for a change.”

“I met Harvey in 1971 in Florida,” Fred Colosimo said. “Friends had invited me down because they thought we would like each other. They were right: it was love at first sight. We eventually moved in together, established a joint checking account, named each other as our beneficiaries, and cared for each other when sick—basically, all the things that committed couples do. And when Harvey got sick in 2004, I took early retirement and became his full-time caregiver. There was never any question, so I did what had to be done. Harvey was my love, my balance and my life. Losing Harvey was hard enough.  But having Social Security tell me I don’t qualify for Harvey’s benefits because we were blocked from marrying feels like adding insult to injury.”

Frederick Colosimo and Harvey Lucas were in a committed relationship from 1971 until Lucas died in 2014. They divided their time between North Carolina and South Carolina, where a number of Lucas’ doctors were located, after he got sick. Both U.S. military veterans, Colosimo was a longtime employee of the U.S. Postal Service, and Lucas worked for Martin-Marietta Corporation (later, Lockheed Martin). Lucas was diagnosed with heart disease in 2004, and Colosimo took early retirement to become his full-time caregiver. In the ensuing 10 years, Lucas was in and out of hospitals until he died in 2014 of cancer. In the midst of this struggle, Lucas and Colosimo managed to travel to New Jersey in November 2013 to get married.

“Same-sex couples who weren’t able to marry for most of their relationship faced discrimination throughout their lives, and now surviving spouses like Fred face it all over again, after their loved one has died,” Borelli said. “These benefits are no less essential to the financial security of surviving same-sex spouses in their retirement years than to heterosexual surviving spouses.”

Read about the case, Colosimo  v. Berryhill, here: https://www.lambdalegal.org/in-court/cases/colosimo-v-berryhill. This is the fourth lawsuit filed in the past year challenging Social Security’s requirement that couples be married for at least nine months to qualify for survivor’s benefits. In September, Lambda Legal filed Thornton v. Berryhill in the U.S. District Court for the Western District of Washington. In November, Lambda Legal filed Ely v. Berryhill in the U.S. District Court for the District of Arizona. And in December, Lambda Legal joined Gonzales v. Berryhill in the U.S. District Court for the District of New Mexico.

Lambda Legal’s attorneys working on the case are: Peter Renn, Tara Borelli, and Karen Loewy. They are joined by Samuel F. Furgiuele, Jr., Attorney at Law.