In July, Kathy Murphy received a letter from the Social Security Administration. “We are writing to tell you that you do not qualify for widow’s benefits,” it said. “You do not qualify for the lump-sum death benefit because you are not Sara Elizabeth Barker’s widow or child.”
Well. Not only had Ms. Murphy shared a modest ranch house in Austin, Tex., with Sara Barker for nearly 30 years, not only had she cared for Ms. Barker through two terrible final years of illness, but the two were indeed legally married.
“We always hoped we’d be married in the state where we made a home,” Ms. Murphy, a native Texan, told me. “But Sara was diagnosed with cancer in 2010 and we didn’t have the luxury of time any more.” So they flew to Boston, where they had met and first lived together, and were wed in a quiet, teary ceremony in a Unitarian Universalist chapel.
Had they remained in Massachusetts, things would be different. But the couple went home to Austin, where Ms. Barker died in early 2012. Social Security won’t approve spousal or survivors benefits for same-sex spouses in Texas and the 16 other states (at the moment) that still don’t recognize their marriages.
“It’s like getting kicked when you’re down,” said Ms. Murphy, 62. “Somebody applying for survivors benefits has already suffered loss. The last thing you want is someone to tell you your marriage isn’t legal and you’re not worthy.”
So she and the National Committee to Preserve Social Security and Medicare are suing the Social Security Administration, arguing that denying benefits to married same-sex couples represents unconstitutional discrimination.
“It is a major issue for older Americans who are lesbian and gay,” said Susan Sommer, an attorney at Lambda Legal who filed the lawsuit last month.
“They started to pull down the barriers,” she said. “They took risks to live with their spouses. They lived to see the Windsor case. And now that they’re aging and need benefits, the federal government is telling them they’re not married.”
A quick review of recent history: In 2010, when Kathy Murphy and Sara Barker said their vows, the federal Defense of Marriage Act barred same-sex spouses from receiving federal benefits. But last year, after the Supreme Court ruled key parts of DOMA unconstitutional in United States v. Windsor, federal agencies began gearing up to extend benefits to same-sex married couples.
Today, Ms. Sommer pointed out, gay and straight couples are treated equally for taxation and immigration purposes; they receive the same military benefits. Federal employees get the same spousal benefits regardless of sexual orientation.
But the Social Security Administration contends that its statute requires it to follow state laws. And it bases spousal benefits not on “place of celebration” — the state where a couple was married — but on “place of domicile,” the state where they lived. Same sex marriage remains unrecognized in Texas, so Ms. Murphy was not, for Social Security purposes, a widow.
In fact, even in the 15 states where same-sex marriage became legal last month — after the Supreme Court declined to review circuit court decisions striking down state bans — Social Security denies benefits if a marriage was not recognized on the relevant date. If a lesbian beneficiary died in, say, Virginia last summer, her widow wouldn’t qualify for survivors benefits because Virginia didn’t recognize their marriage on the date of death.
Who qualifies for Social Security benefits concerns nearly all older Americans. At stake for couples are not only retirement benefits based on a spouse’s work history, and survivor benefits when a spouse has died, but in some cases payments made to a disabled spouse.
Lambda Legal, for instance, last week filed suit on behalf of Dave Williams, who married Carl Allen in San Francisco in 2008. When Mr. Allen died in 2010, Social Security owed him about $3,500 in back disability payments. But it denied Mr. Williams that sum, and the $255 lump-sum death benefit payable to surviving spouses, because the couple had lived in Arkansas, which didn’t recognize their marriage.
In Ms. Murphy’s case, she had originally planned to apply for Social Security benefits at her full retirement age of 66. But because she retired early to care for her ailing wife, she receives a lower pension than anticipated. She needed income, and wanted spousal benefits to tide her over until she could tap her own Social Security retirement benefits.
The financial consequences aren’t trivial: If she had qualified for an expected $1,210 a month in spousal benefits, then applied for her own retirement benefits at 66, she would have received $2,130 a month for the rest of her life. Instead, denied spousal benefits, she began drawing her own benefits early, at 62, and therefore receives less: $1,547 a month.
“Maybe $583 isn’t a lot to other people, but it’s a lot to me,” Ms. Murphy said. If she survives to age 86 (average life expectancy for an American woman who reaches 65 exceeds 20 years), that difference amounts to about $140,000.
Finances, aren’t her only motivation, of course. She thinks Sara Barker would approve of her taking on Social Security’s policies.
“It’s a fundamental injustice,” Ms. Murphy said. “As sad and tragic as losing Sara has been, I feel in some tiny odd way this keeps her spirit alive a little.”