EMs Allowing Benefits For Those Who Had Been Unable To Marry Due To Unconstitutional State Laws

      Social Security had earlier announced that it was settling two class actions concerning those who had been denied benefits due to the nine month duration of marriage requirement for widows/widowers benefits in the setting of couples who had been unable to marry due to state laws, later found unconstitutional, prohibiting same sex marriages. Now, the agency has issued two Emergency Messages (EMs) showing how it will implement the new policies.

     The Thornton v. Commissioner EM and the Ely v. Saul EM tell agency adjudicators to consider these questions in determining whether there was an intent to marry that was thwarted by unconstitutional state laws:

· Would the claimant have married their partner if not for a State law that prohibited same-sex marriage? 

· What date would the couple have married if they were not prohibited from doing so? 

· Did the law of the State where the couple lived permit same-sex marriages before the NH died? For information about when States and U.S. territories permitted same-sex marriages, refer to GN 00210.003. 

· Did the couple have a commitment ceremony or attempt to have the relationship formally recognized in any other way prior to the NH’s death? 

· Did the couple exchange commitment rings? 

· Was the claimant in a committed relationship with the NH? If so, for how long?

· Did the couple live together? If yes, how long did they live together?  

· Did they own property together?

· Did the claimant inherit from the NH based on a will?

· Did the NH name the claimant as a beneficiary for life insurance or retirement benefits?

· Did the couple have children together or did they raise any children together from prior relationships?

· Did the claimant and the NH share joint responsibility to care for one another?· Would the claimant and the NH have been otherwise eligible to marry if the law had not barred same-sex couples from marriage? Consider the following questions when determining whether the parties were eligible to marry:

· Were the claimant and NH related to each other in a way that would prevent them from marrying?
· Were the claimant and NH both over the age of 18 during their relationship (or, if not, over the relevant age of majority to marry)?
· Were the claimant and NH prevented from marrying each other because one of them was married to someone else?

· Did the couple choose not to marry prior to the NH’s death for reasons other than a State law prohibition on same-sex marriages?

· Is there any other available evidence regarding whether the couple would have married, and what date they would have married, if State law did not prohibit same-sex marriages?