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Same Sex Survivor Benefits

Same Sex Survivor Benefits

The same sex marriage battle continues to intensify. State and federal legislators have proposed “Defense of Marriage” laws, some of which have become laws. In November 2004, voters in 11 states passed state constitutional amendments banning same sex marriage. Conservative, religious, liberal, and civil rights groups continue the debate over whether same sex couples should be permitted to enter into legal marriage. Those in favor of same sex marriages say that same sex couples seek “marriage equality” for the same reasons that everyone else does: to protect their relationships and to receive the same benefits and recognition as heterosexual couples and their families. Among those benefits are survivor or death benefits.

Civil rights advocates say that presently, a same sex partner is unlikely to receive any sort of survivor or death benefits following the death of the other partner. Any survivor benefits have tended to come from charitable groups and relief agencies, but not from federal or state sources. For instance, the American Red Cross disaster service policies written in response to the terrorist attacks of September 11, 2001 recognize same sex couples as families.

Social Security and other federal death benefits not available for same sex survivors

Social Security death benefits can only be paid out to a surviving spouse. Because they cannot enter into legal marriages, gays and lesbian survivors are not entitled to collect Social Security death benefits. Similarly, they cannot collect federal pensions or other death benefits.

September 11th Fund survivor benefits for same sex partners


It is estimated that about two dozen gay and lesbian partners were killed during the terrorist attacks of September 11th. The creation of the federal September 11th Victim Compensation Fund brought the issue of survivor benefits for gay and lesbian partners to the forefront. Civil rights advocates asked the United States Department of Justice to recognize that gay and lesbian survivors–including children of same sex parents–wanted the same recognition and financial security as other grieving survivors. In 2003, one woman whose partner of 18 years was killed at the Pentagon on September 11th was awarded a sum from the Fund. Civil rights advocates hailed the decision as a victory in an ongoing struggle for such recognition. Many gay and lesbian survivors, however, found that any survivor benefits were likely to be awarded to only those people who had legal standing as family members. Of primary concern was the lack of a clear definition of the word “relatives” in the final regulations for distribution from the Fund.

After the attacks, the legislature and Governor of New York took steps to recognize gay and lesbian survivors of those killed on September 11th. The governor issued an executive order directing that same sex survivors were entitled to payments from the state’s Crime Victims Board. The legislature passed a law recognizing the surviving domestic partners and making their children eligible for a special memorial scholarship.

The federal government passed the Mychal Judge Act, which ordered the payment of federal benefits to the same sex survivor of a gay or lesbian partner who died in the line of duty while working as a firefighter, police officer, or other public safety officer. The law was named for a gay clergyman who was killed while he worked with September 11th victims. While purportedly a positive step toward recognition of same sex relationships, some civil rights advocates say that the law has yet to benefit any survivors because it was made retroactive only to September 11th.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.