Social Security isn't done with same sex marriage issues. Some cases dealing with exactly when a marriage is recognized to have existed are still working their way through the system. I'm not sure about this case, however. The bigger problem here may have to do with how long the two were married before one of them died, a problem which has nothing to do with this being a same sex marriage, other than that they might have gotten married earlier but the law didn't allow it. Marriages have to last at least nine months for a person to be considered a widow or widower unless the death was unexpected and the death was very much expected in this case.
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The problem is that they got married presumably knowing that one of their deaths was going to happen and they were not married 9 months.
I had a case like this a million years ago involving a man/woman marriage. it was solved by arguing common law marriage contracted 9 months prior to the death and thus couple met the 9 month rule. It worked once it got before an ALJ. So if this gay couple ever traveled to a common law state and held themselves out as husband and husband, it is worth a try. Even if they did not reside in a common law state when married, full force and effect clause comes into play. Can't remembe what proof was used to establish that they had held themselves out as common law man and wife, but I think it was a time share or something like that. Its been a long time but that was the gist of it.
I wish them luck.
I'm sympathetic, indeed they couldn't marry and then death occurred before meeting the legal timeframes once they could and did marry. But there is a time element requirement that they didn't, for whatever reason, meet. What's the point of having eligibility requirements if you throw them out the window when ever you feel like it because of sympathy? Seriously, a dear dear friend of mine became very ill and attempted to take his insurance out early (since he was terminal, he could get access to it before his death). However, he died before that was done, and it became apparent upon review of his insurance folder that he never changed his beneficiary from his first wife to his current wife, and the money all went to a woman he hadn't been married to for decades. His current wife and children went without. The family lost in multiple levels of court. The point is sh*t happens. My friend should have changed his paperwork. This couple could have married as early as 2003 but didn't for their own reasons. Terrible consequences, but again, why have rules if they just get ignored?
As soon as I saw this case I kept thinking, "Why is the ACLU taking it up? It's a very simple application of state law, etc. at the relevant times/locations."
Yes, the result is very unfair. And yes I realize the clocks we look at for these issues only recently could have started for same sex couples, but that's how this works. Maybe they can convince a court to do something retroactively on public policy grounds, but from where I'm sitting that's about the only type of argument they have and it's weak.
Same sex marriage in CA was legal for more than 9 months before the spouse died in Feb 2015 so it's hard to argue that the law did not allow them to be married 9 months. They did not take advantage of same sex marriage laws in states that did allow it.
I have seen opposite sex couples miss the cutoff by a couple of days. Life sucks at times but rules are rules.
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