Obergefell v. Hodges, decided June 26, 2015, gave same-sex couples a nationwide right to marry, and the Social Security Administration now recognizes those marriages exactly like any other for spousal and survivor benefit purposes. But for couples together for decades before 2015 — often prevented from marrying by their own state’s laws — the marriage-date rules created a real, separate problem that isn’t fully resolved.
The Basic Rule Today
Same-sex spouses who married in the United States are entitled to the same spousal and survivor benefits as any other married couple, calculated under the identical rules covered in our spousal benefits and survivor benefits guides. There is no separate, lesser benefit structure for same-sex marriages recognized under Obergefell. That part is settled.
Where the Pre-Obergefell Marriage Date Still Matters
Survivor benefits generally require the marriage to have lasted at least nine months before the worker’s death (with exceptions for accidental death or a prior marriage to the same person). For a couple who wanted to marry for 20 years but couldn’t because their state banned it until 2015, and then lost a spouse shortly after finally marrying, that duration requirement could have blocked survivor benefits entirely — despite a relationship far longer than nine months, just not a legally recognized one for most of it.
This was a real, documented problem for years after Obergefell: SSA initially applied the marriage-duration rule using only the legal marriage date, even when a state law that unconstitutionally barred the couple from marrying earlier was the only reason the marriage happened late. Following legal challenges, SSA adopted new rules in late 2021 that expanded survivor benefit eligibility specifically for people in this situation — allowing evidence of the relationship and the unconstitutional state marriage ban to factor into the duration determination, rather than treating the legal marriage date as the only fact that matters.
Common-Law Marriage Adds Another Layer
In states that recognize common-law marriage, courts have generally held that Obergefell applies retroactively: a same-sex couple who met a state’s common-law marriage requirements (holding out as married, cohabitation, and the state’s other specific criteria) before 2015 can be treated as married from that earlier common-law date, not the date of a later formal ceremony. Because state laws barring same-sex common-law marriage before 2015 were themselves unconstitutional, those bans generally can’t be used to argue the common-law marriage never validly formed.
What to Actually Do If This Applies to You
If you’re a surviving same-sex spouse whose legal marriage came late because of a state ban, or whose claim was denied or reduced under the old duration rule:
- Gather documentation of the relationship’s real length — joint leases, shared finances, photos with dates, affidavits from people who knew you as a couple, anything that establishes when the relationship functioned as a marriage in substance.
- If you live in (or lived in, at the relevant time) a common-law marriage state, look specifically at whether you met that state’s common-law criteria before your state’s same-sex marriage ban would otherwise have made that irrelevant.
- If a claim was previously denied for failing the marriage-duration test and the underlying reason was a pre-2015 marriage ban, it is worth re-raising directly with SSA under the 2021 policy expansion rather than assuming the earlier denial is final.
This is a narrow, specific situation, but it is a real gap that affected a meaningful number of long-term couples — and unlike most Social Security rules, it isn’t one most financial advisors think to check.
Affiliate Disclosure: This page may contain affiliate links. If you make a purchase or sign up through these links, we may earn a commission at no extra cost to you.
Recent Comments