From the NM Political Report:
I regret that Mr. Gonzalez lost his husband. I regret that he wasn't allowed to marry Mr. Johnson until 2013 but this lawsuit is going nowhere.
Anthony Gonzales met his future husband, Mark Johnson, at an Albuquerque gay bar, twenty years ago this month. Soon after, Gonzales and Johnson moved in and began their life together. In 2013, they made their union legally binding when they joined hundreds of other couples on Albuquerque’s Civic Plaza on the first day counties across New Mexico began legally recognizing same sex marriages. Almost six month later, 180 days to be exact, Johnson died of cancer.
Now, just weeks before his wedding anniversary, Gonzales has filed a federal civil suit against the U.S. Government’s Social Security Administration for the monetary benefits he said he is owed. The suit, filed in June, asks for Social Security survivor benefits or money usually paid out to a surviving spouse. But, the Social Security Administration requires couples to be married for nine months before a surviving spouse can collect those specific benefits from their deceased partner. That’s the case for Gonzales and thousands of others, even though the administration grants other exceptions for those who have been able to legally marry for centuries.The only other exception is for cases where the death was unexpected which, apparently, wasn't the case here since Mr. Johnson died of cancer.
I regret that Mr. Gonzalez lost his husband. I regret that he wasn't allowed to marry Mr. Johnson until 2013 but this lawsuit is going nowhere.
12 comments:
Hmm. That's an interesting one. I immediately agreed with you, but the more I think about it I don't know. The argument their relationship predates by many years the law (finally) allowing them to wed seems to have at least some merit. Thanks for highlighting this.
The lawsuit is going nowhere because the issue is not one Social Security can remedy under the Act.
The barrier to the claim is that they were not able to enter into a marriage. The Act requires SSA to use state law to determine a valid marriage. The only remedy would be for Congress to enact legislation to allow Social Security to determine a marriage existed except for the requirement that a ceremony (or common-law) existed under state law prior to the actual occurrence or ability for a marriage to be contracted under the state's law if the sole basis was due to legislation baring same-sex marriage. Does that sound like something that will be applied fairly or even pursued by this Congress? Tongue-in-cheek, wouldn't the next claimant be the first-cousins barred from marriage in many states, where is their justice?
This issue has been settled many times before in the courts: The Act does not give Social Security the power to create a marriage where none had existed under state law.
It may be unfortunate, but it isn't something that is going to change.
How likely was he to die? That is the Achilles Heel in the gov't's case. The medical records could be key.
2 things
1. When was he diagnosed with cancer, before or after the marriage?
If after, his surviving spouse has a colorable claim of unexpected death.
2. Before they were legally married, did they travel to a common law state that also recognized gay marriages at the time and hold themselves out as married, like signing a hotel register or something similar? If they did, then the question would be did New Mexico recognize common law marriages contracted out of state? I want to say all states would have to under the full faith and credit clause, but I'm not sure.
This is all off the cuff without an ounce of research, just using the old brain cells with some very old cases I have worked on.
Even if he was diagnosed with cancer before the marriage it is NOT fatal to the claim. What was his prognosis. Was the wedding a ' normal' one at a church or city hall or was it in a hospital room. The issue there is if they expected normal life. Not every cancer diagnosis is fatal. There are periods of remission in some cases. That angle needs to be developed.
5:58, 11:05 here
You make a very, very good point.
This is going nowhere because there is a nine-month duration of marriage requirement for an individual to collect widow's/widower's benefits; the main exception being "accidental" death. It has been in the Social security Act for at least 45 years.
832
I beg to differ with such a flat answer. I have personally seen a widow get paid when her husband died before the 9 month period elapsed because they had traveled to a common law state, held themselves out as man and wife, and the state in which they resided recognized a common law marriage contracted out of state. When looking at the validity of a marriage for SSA, you look to state law.
Now this particular case may be going nowhere because I am sure that if they had visited a common law state that recognized gay marriage and held themselves out as married, greater legal minds than us would have argued the same.
However, it has nothing to do with the strict reading that you purport and everything to do with the facts of the case.
As always, the correct legal answer is "it depends".
8:32 and others:
Is the standard "accidental" or "unexpected"?
@9:28am
The standard is accidental from an "external" force. If someone had cancer (even undiagnosed) and died 4 months after being married, then it would not meet an exception to the 9-month duration.
However, someone who had cancer and was undergoing treatment with a prognosis of at least 9 months, were to die in a car accident, heart attack (not related to stress of the treatments) or a homicide, then the exception would be met.
The guidance for this is in POMS GN 00305.105. (https://secure.ssa.gov/poms.nsf/lnx/0200305105)
In cases where it cannot be determined by a representative alone if the cause of death were external, the issue is sent to DDS after conferring with the component's Regional Office.
Also, based on the facts of this case, it is unclear if even a common law marriage would be sufficient. New Mexico has split decisions on brief or temporary sojourns to a common law state. And since the issue was never raised prior to federal court, it is unlikely to be considered at the hearing. For it to be considered, would likely require a S4 remand.
832 here, it says accidental but I wouldn't get stuck on that word. Like I said above, it depends on the facts of the case.
I have already stayed too long at the fair, so I'm done with this thread.
In today's world, I do not see the point of spousal benefits in any event. Nor are they particularly fair. Why should a spouse get benefits at age 60 when a worker today has to wait to 67?
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