If the relationship began before June 26, 2015, the date same-sex marriage became legal in all states per the United States Supreme Court decision in Obergefell v. Hodges, proceed to GN 00210.805D.2 in this section.

If the relationship began on or after June 26, 2015, the date same-sex marriage became legal in all states per the Obergefell decision, deny the claim because at no point during the relationship did an unconstitutional State law prevent the couple from marrying. As a result, the claimant does not benefit from additional consideration pursuant to Ely. Proceed to GN 00210.805F in this section for further instructions on denying the claim, affirming the initial determination at reconsideration level, or refusal to reopen.

Alan and Brian’s relationship began on July 4, 2016, and they got married on September 1, 2017. Alan unexpectedly passed away on December 1, 2017. Same-sex marriage became legal in all states on June 26, 2015. Because Alan and Brian’s relationship began after the date same-sex marriage became legal in all states, at no time did an unconstitutional State law prevent them from marrying in time to meet the 9-month duration requirement. As a result, Brian is not entitled to consideration pursuant to Ely. As a result, do not find that Alan and Brian would have met the 9-month duration of marriage requirement but for an unconstitutional State law. This claim does not require secondary review because the relationship began after June 26, 2015.

If the NH died before June 26, 2017, consider all available evidence of the factual circumstances that resulted in the couple being married for less than 9 months when the NH died.

Some questions we may consider in making the determination are:

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  Did the law of the State where the ceremonial marriage occurred prohibit same-sex marriages until less than 9 months before the NH’s death? For information about when States and U.S. territories permitted same-sex marriages, refer to GN 00210.003.

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  If the couple had a ceremonial marriage in a State other than the couple’s State of domicile, did the State of domicile allow for same-sex marriage before the State where the ceremonial marriage occurred?

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  Would the claimant have been married to their partner for at least 9 months if a State law did not prohibit same-sex marriage?

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  If the couple could have met the 9-month duration requirement based on the date same-sex marriages were permitted in the State where they married, what were their reasons for not marrying earlier?

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  Was there a waiting period for marriage licenses when the claimant and NH applied for a marriage license?

  For example, if the couple was required to wait 3 days after receiving a license and before having a ceremony, would subtracting those 3 days allow them to meet the 9-month duration requirement?

  For example, did the courthouse experience a high volume of requests for marriage licenses immediately after the State permitted same-sex marriage? Did this mean the couple was not able to get a license until several days after the State permitted same-sex marriage and would subtracting those days allow the couple to meet the 9-month duration requirement?

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  How long was the couple together?

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  Did the couple live together? If yes, when did they begin living together, where did they live, and how long did they live together?

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  Did they own property together?

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

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

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  Was there any commitment ceremony or other attempt to have the relationship formally recognized prior to the legalization of same-sex marriage?

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

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  Is there any other available evidence regarding when they would have married had State law permitted them to marry earlier?

The following examples help illustrate these considerations in determining a claim, appeal, or reopening request for widow(er)'s insurance benefits:

Example 1: Beginning in January 1980, Jane and Sue lived together continuously in California. During their relationship, they purchased a house and three cars together. Jane named Sue as the beneficiary on her life insurance policy, and Sue named Jane as the beneficiary on her policy. Sue also named Jane as the beneficiary of her retirement benefit at work. Jane and Sue expressed to friends and family their desire to be married, and Jane alleges that she and Sue would have married as early as June 1990 had they been permitted to do so. Same-sex marriage became legal in California on June 16, 2008. Jane and Sue married in California one month later, on July 16, 2008. Sue died a few months after their wedding, on September 16, 2008. Jane applied for widow's benefits on Sue's earnings record. In this case, the evidence supports the conclusion that, but for California’s unconstitutional prohibition on same-sex marriage, Jane and Sue would have married many years earlier. As a result, find that Jane and Sue would have married at least 9 months before Sue’s death but for the unconstitutional State law, and process Jane’s claim for benefits as Sue’s surviving spouse. Accept Jane’s allegation which is accompanied by credible supporting evidence that she and Sue would have married in June 1990 for purposes of indicating a marriage date.

Example 2: Beginning in January 2001, Rob and Keith lived together continuously in Massachusetts. Same-sex marriage became legal in Massachusetts on May 17, 2004. Rob and Keith married in Massachusetts approximately 7 years later, on July 20, 2011. Keith died a few months after their wedding, on December 20, 2011. Rob applied for widower's benefits on Keith's earnings record. Under Ely, Rob’s application for widower’s benefits should not be granted because there is insufficient evidence that Rob and Keith would have married earlier if not for an unconstitutional prohibition of same-sex marriage. Instead, it is clear that under Massachusetts law, the couple could have married up to 7 years earlier but chose not to do so. It was that personal decision regarding the timing of their marriage that caused them not to satisfy the 9-month duration of marriage requirement, not any unconstitutional State law. As a result, do not find that Rob and Keith would have married earlier but for an unconstitutional State law. If the claim is pending at the initial or reconsideration levels of the administrative review process, or is a refusal to reopen, refer the claim to a member of management or CTE for secondary review of the determination before adjudicating the claim or manually clearing a refusal to reopen.

Example 3: Beginning in January 1990, Mike and John lived together continuously in Montana. On January 1, 2002, they held a commitment ceremony, officiated by the minister of their church. At the ceremony, Mike and John exchanged vows and rings. Their minister issued them a certificate of holy union. Mike alleges that he and John would have gotten married on that day if Montana law had permitted them to do so. In April 2010, shortly after John was diagnosed with cancer, Mike and John went to Iowa and married. (Same-sex marriage became legal in Iowa on April 20, 2009, but did not become legal in Montana until November 19, 2014.) John died on September 29, 2010. Mike applied widower's benefits on John's earnings record. In this case, the evidence supports the conclusion that but for Montana’s unconstitutional prohibition on same-sex marriage, Mike and John would have married on January 1, 2002. As a result, find that Mike and John would have been married at least 9 months before John’s death but for the unconstitutional State law, and process Mike’s claim for benefits as John’s surviving spouse. Accept Mike’s allegation (which is accompanied by credible supporting evidence) that he and John would have married on January 1, 2002, for purposes of indicating a marriage date.

Example 4: Cathy married Bob in 1980. Cathy and Bob separated in 1995. Beginning in August 2002, Cathy and Danielle lived together continuously in Vermont. Same-sex marriage became legal in Vermont on September 1, 2009. Cathy and Bob divorced on January 2, 2011. Cathy and Danielle married in Vermont on January 5, 2011. Danielle died on February 11, 2011. Cathy applied for widow's benefits on Danielle's earnings record. Under Ely, Cathy’s application for widow’s benefits should not be granted because there is insufficient evidence that Cathy and Danielle would have married earlier but for an unconstitutional prohibition of same-sex marriage. Instead, it is clear that under Vermont law, the couple could have married over a year earlier but failed to do so. It was the fact that Cathy remained married to Bob until January 2, 2011, not an unconstitutional State law, that caused Cathy and Danielle not to satisfy the 9-month duration of marriage requirement. As a result, do not find that Cathy and Danielle would have married earlier but for an unconstitutional State law. If the claim is pending at the initial or reconsideration levels of the administrative review process, or is a refusal to reopen, refer the claim to a member of management or CTE for secondary review of the determination before adjudicating the claim or manually clearing a refusal to reopen.

IMPORTANT: Keep in mind that the questions and examples above are not all-inclusive. See GN 00210.805E in this section for development of the evidence.

If the NH died on or after June 26, 2017, the agency will presume that an unconstitutional State law did not prevent the claimant and the NH from being married for at least 9 months given that same-sex marriage was legal in all states per Obergefell beginning June 26, 2015. The agency applies a presumption that the couple did not marry at least 9 months before the NH’s death for reasons other than an unconstitutional State law. The claimant can provide evidence to rebut this presumption by the totality of the circumstances. In other words, the claimant is still able to provide evidence to explain that the couple did not marry at least 9 months before the NH’s death due to an unconstitutional State law even if the NH died on or after June 26, 2017. See examples below.

To determine if the totality of the circumstances explains the couple’s failure to marry in time to meet the 9-month duration requirement by June 26, 2017:

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  Conduct a thorough interview with the claimant about the circumstances that resulted in the claimant not being married to the NH for at least 9 months. Document those circumstances on the MCS RMKS screen, an RPOC in MCS, or other electronic writing.

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  Consider all available evidence of the factual circumstances (see GN 00210.805D.2.a and E in this section, GN 00301.010, and GN 00301.305) that resulted in the couple not being married for at least 9 months by June 26, 2017.

If the NH died after June 26, 2017, and the claimant and NH were not married for at least 9 months, some questions you may consider in making the determination are:

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  Why didn't they marry sooner?

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  Was one member of the couple deployed overseas without interruption between June 26, 2015, and June 26, 2017?

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  Was one member of the couple incapacitated by illness or injury between June 26, 2015, and June 26, 2017?

The following examples help illustrate these considerations in determining a claim, appeal, or reopening request for widow(er)'s insurance benefits:

Example 1: Beginning in June 2013, Donna and Lisa entered into a committed relationship with each other. During their relationship, they purchased two homes together and maintained one joint account. Donna named Lisa as the beneficiary on her life insurance policy, and Lisa named Donna as the beneficiary on her life insurance policy. Donna and Lisa also both named each other as the beneficiary of their respective retirement benefits at work. Donna and Lisa expressed to friends and family their desire to be married, and Donna alleges she and Lisa would have married as early as May 2014 had they been permitted to do so. Lisa was diagnosed with stage three brain cancer in August 2014 and underwent intense medical treatment off and on for several years. Donna proposed to Lisa on January 10, 2015, soon after same-sex marriage became legal in Florida. They planned to get married in May 2015 but could not marry because of Lisa’s constant hospitalizations and debilitating symptoms. Lisa’s intense cancer treatment was ongoing, and between the constant appointments and severe side effects of her treatments the couple was not able to have the ceremony that they had planned. Lisa was admitted to hospice in June 2017. While in hospice, Donna and Lisa had a bedside wedding ceremony in July 2017. Lisa died in October 2017. Therefore, she and Donna were only married for 3 months. Donna applied for widow's benefits on Lisa's earnings record. In this case, the evidence supports the conclusion that but for Florida’s unconstitutional prohibition on same-sex marriage, Lisa and Donna would have married in enough time to meet the 9-month duration requirement. Additionally, they were unable to marry before June 26, 2017, because Lisa was consistently hospitalized and experienced debilitating symptoms related to her illness. The totality of the circumstances rebuts the presumption. As a result, find that the totality of the circumstances provides an explanation for Donna and Lisa’s inability to marry sooner, despite Lisa dying after June 26, 2017. Donna and Lisa would have married at least 9 months before Lisa’s death, but for the unconstitutional State law. Process Donna’s claim for benefits as Lisa’s surviving spouse. Accept Donna’s allegation (which is accompanied by credible supporting evidence) that she and Lisa would have married in May 2014 for purposes of indicating a marriage date.

Example 2: Beginning in January 2007, Joe and Larry lived together continuously in Hawaii. Same-sex marriage became legal in Hawaii on December 2, 2013. Joe and Larry did not get married until January 2019. Larry died on July 1, 2019. Joe does not allege that any illness or other circumstance prevented the marriage from occurring earlier. Joe applied for widower's benefits on Larry's earnings record. The totality of the circumstances does not explain why Joe and Larry were not married for at least 9 months given that Larry died after June 26, 2017. Therefore, Joe is presumed to not be entitled to additional consideration under Ely, and Joe’s application for widower’s benefits should not be granted because the evidence does not show the couple would have married in time to meet the 9-month duration requirement but for a State law prohibiting same-sex marriage. It was the couple’s personal decision to wait until January 2019, which prevented them from satisfying the marriage duration requirement, not any unconstitutional State law. The totality of the circumstances does not rebut the presumption. As a result, do not find that Joe and Larry would have married in enough time to meet the 9-month duration but for an unconstitutional State law, and do not find Joe is entitled to additional consideration pursuant to Ely.

IMPORTANT: Keep in mind the questions and examples above are not all-inclusive.

If, based on the information provided and evidence obtained, you determine the couple would have been married for at least 9 months but for an unconstitutional State law prohibiting same-sex marriage, process the application recognizing the claimant as a surviving spouse and accept the allegation of the date on which they would have married for purposes of establishing a marriage date and:

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  Change the date of the couple’s marriage on the NH Marriage (NMAR) and Beneficiary Marriage (BMAR) screens in MCS to the date on which the claimant would have married, if the couple had been permitted to do so under State law.

  NOTE: If you determine that the couple would have been married for at least 9 months, but the information provided does not establish any specific date on which they would have been married, enter a date that is exactly 9 months earlier than the date of the NH’s death.

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  Enter listing code “527” on the Decision Input (DECI) screen in MCS.

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  Review the claimant’s record to determine whether the claimant is currently receiving other benefits. If the claimant is awarded widow(er)’s benefit under this POMS section and is currently receiving other benefits, see GN 00210.805F.1.c in this section.

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  Enter a “Y” next to “Incomplete” on the NOT3 screen for an incomplete notice and adjudicate the award using standard procedures.

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  If the claimant is deceased and an underpayment is due, see GN 02301.030 through GN 02301.075 for instructions on how to process the underpayment.

If you determine the claimant is entitled to additional consideration pursuant to Ely and the couple would not have been married for at least 9 months but for an unconstitutional State law prohibiting same-sex marriage, follow these instructions:

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  Obtain secondary review of the claim from either a member of management or CTE.

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  If the management official or CTE concurs with your determination, the management official or CTE will prepare a RPOC in MCS that clearly states the rationale for determining that the surviving spouse does not qualify for benefits under Ely v. Saul.

  NOTE: If the management official or CTE disagrees with the determination, the management official or CTE will prepare a RPOC in MCS that clearly states the rationale for determining that the surviving spouse qualifies for benefits under Ely v. Saul. To resolve conflicting rationales, contact Regional Office (RO) support staff for additional guidance. If the final determination is the surviving spouse qualifies for benefits under Ely v. Saul, see GN 00210.805F.1.a in this section.

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  Do not change the date of the couple’s marriage on the NMAR and BMAR screens in MCS.

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  Enter listing code “527” on the DECI screen in MCS.

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  Enter a “Y” next to “Incomplete” on the NOT3 screen for an incomplete notice.

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  Adjudicate the claim using standard procedures.

If you determine the claimant is not entitled to additional consideration pursuant to Ely (see GN 00210.805D.1, D.2, and D.3 in this section) and the couple would not have been married for at least 9 months but for an unconstitutional State law prohibiting same-sex marriage, follow these instructions:

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  Do not obtain a secondary review.

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  Do not change the date of the couple’s marriage on the NMAR and BMAR screens in MCS.

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  Enter listing code “527” on the DECI screen in MCS.

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  Enter a “Y” next to “Incomplete” on the NOT3 screen for an incomplete notice

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  If the claim will be processed via Automated 101 (A101) or an Electronic Form 101 (EF101), use the claim report of contact (RPOC), the A101 Benefit Continuity Remarks/Notice (BCRN) or the EF101 remarks continued (EFBCRN) screens to alert the PC that Ely processing instructions in this section must be followed.

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  Adjudicate the claim using standard procedures.

If a claimant eligible for widow(er)’s benefits under Ely is currently receiving other benefits, determine whether an award of widow(er)’s benefits would affect (1) the claimant’s eligibility for those other benefits, or (2) the monthly benefit amount the claimant is receiving.

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  Consider benefits that were available to the claimant at the time of their prior application(s).

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  Consider prior filings when presenting the claimant with the possible options available because of the eligibility for widow(er)’s benefits under the NH’s record.

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  Consider entitlement to AUXSPO benefits during the established period of marriage to the deceased NH and apply deemed filing as appropriate per GN 00204.035.

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  Present options that consider prior filings, deemed filing, monthly benefit amounts, retroactive payments, delayed retirement credits (DRC), Government Pension Offset (GPO), and the Supplemental Security Income (SSI) requirement to file for other program benefits.

If you determined that a claimant and the NH would have been married for at least 9 months but for an unconstitutional State law prohibiting same-sex marriage, the claimant may file for the benefits that they would have been entitled to as a spouse. While current regulations and policy limit withdrawals of Retirement Insurance Benefits (RIB) to one approved RIB withdrawal per lifetime, because of the court’s decision and the agency’s agreement to end litigation, we will permit withdrawal requests by claimants who are awarded widow(er)’s benefits. In these cases, we will:

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  allow a claimant eligible for widow(er)’s benefits pursuant to Ely who is receiving RIB on their own record to submit a withdrawal request more than 12 months after the first month of entitlement on their own record;

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  not count an approved withdrawal of a previous RIB claim toward the limit of one approved RIB withdrawal in the claimant’s lifetime; and

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  require that all other criteria in GN 00206.005A be met, including repayment of all benefits received.

NOTE: These instructions also apply to awards resulting from an appeal or request to reopen.

For claims that are pending at the reconsideration level of the administrative review process, if reversing a denial of benefits based on the decision in Ely:

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  Change the date of the couple’s marriage on the NMAR and BMAR screens in MCS to the date on which the claimant alleges they would have married if they had been permitted to do so under State law and if supported by the information and evidence provided.

  NOTE: If you determine that the couple would have been married for at least 9 months, but the information provided does not establish any specific date on which they would have been married, enter a date that is exactly 9 months earlier than the date of the NH’s death.

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  Enter listing code “527” on the DECI screen in MCS.

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  Enter a “Y” next to “Incomplete” on the NOT3 screen for an incomplete notice.

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  Effectuate the reversed determination following standard procedures.

If you determine the claimant is entitled to additional consideration pursuant to Ely and the couple would not have been married for at least 9 months but for an unconstitutional State law prohibiting same-sex marriage, follow these instructions:

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  Obtain secondary review of the claim from either a member of management or CTE.

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  If the management official or CTE concurs with your determination, the management official or CTE will prepare a RPOC in MCS that clearly states the rationale for determining that the couple does not qualify for benefits under Ely v. Saul.

  NOTE: If the management official or CTE disagrees with the determination, the management official or CTE will prepare a RPOC in MCS that clearly states the rationale for determining that the couple qualifies for benefits under Ely v. Saul. To resolve conflicting rationales, contact RO support staff for additional guidance. If the final determination is the surviving spouse qualifies for benefits under Ely v. Saul, see GN 00210.805F.2.a in this section.

• •

  Do not change the date of the couple’s marriage on the NMAR and BMAR screens in MCS.

• •

  Enter listing code "527" on the DECI screen in MCS.

• •

  Enter a "Y" next to "Incomplete" on the NOT3 screen for an incomplete notice.

• •

  Adjudicate the appeal using standard procedures.

If you determine the claimant is not entitled to additional consideration pursuant to Ely and the couple would not have been married for at least 9 months but for an unconstitutional State law prohibiting same-sex marriage, follow these instructions:

• •

  Do not obtain a secondary review.

• •

  Do not change the date of the couple’s marriage on the NMAR and BMAR screens in MCS.

• •

  Enter listing code “527” on the DECI screen in MCS.

• •

  Enter a “Y” next to “Incomplete” on the NOT3 screen for an incomplete notice.

• •

  Adjudicate the appeal using standard procedures.

• •

  Confirm that the initial claim and reconsideration were denied using denial code 31 (Does not meet the duration of marriage requirement).

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  Follow established procedures for sending non-medical appeals to the Office of Hearings Operations.

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  Ensure that the comment “Ely court case” is included in the subject line of any email correspondence.

• •

  FO will add comment “Use court characteristic ELY1 to identify as Ely District Court Decision Case” to any email correspondence.

If, after developing the evidence, you determine that the couple would have been married for at least 9 months but for an unconstitutional State law prohibition on same-sex marriage:

• •

  Reopen the claim pursuant to GN 04010.020A and GN 04020.080.

• •

  Prepare a RPOC in MCS that clearly states the rationale for determining that the surviving spouse qualifies for benefits under Ely v. Saul. Explain your reasons for concluding that the couple would have been married for at least 9 months if no unconstitutional State law prohibiting same-sex marriage had existed.

• •

  Follow the instructions in GN 00210.805F.1.a in this section (The couple would have been married for at least 9 months but for an unconstitutional State law).

• •

  If the claimant is deceased and an underpayment is due, see GN 02301.030 through GN 02301.075 for instructions on how to process the underpayment.

If, after developing the evidence, you determine that the couple would not have been married for at least 9 months but for an unconstitutional State law prohibiting same-sex marriage:

• •

  Do not reopen the claim.

• •

  Prepare a RPOC in MCS that clearly states the rationale for determining that the surviving spouse does not qualify for benefits under Ely v. Saul. Explain your reasons for concluding that the couple would not have been married for at least 9 months, even though an unconstitutional State law prohibiting same-sex marriage existed.

• •

  Refer the case to a member of management or CTE for a secondary review of your determination not to reopen the prior denial, before sending any notice.

• •

  If the management official or CTE concurs with your determination, the management official or CTE will prepare a RPOC in MCS that clearly states the rationale for determining that the surviving spouse does not qualify for benefits under Ely v. Saul.

  NOTE: If the management official or CTE disagrees with your determination, the management official or CTE will prepare a RPOC in MCS that clearly states the rationale for determining that the surviving spouse qualifies for benefits under Ely v. Saul. To resolve conflicting rationales, contact RO support staff for additional guidance.

  REMINDER: If the relationship began on or after June 26, 2015, or the NH died after June 26, 2017, the secondary review is not needed.

• •

  If the determination is that the surviving spouse does not qualify for benefits under Ely v. Saul, manually clear the claim.

• •

  Prepare and send the “Ely Class Action - Refusal to Reopen” notice via Document Processing System (DPS), which includes Universal Text Identifiers (UTI) CAS023 and CAS020. For UTI language, see GN 00210.805H in this section.

• •

  If that person provides the deceased claimant’s name and SSN, and would be eligible to receive an underpayment on the deceased claimant’s record, see GN 02301.030. and follow the instructions in GN 00210.805.F3 in this section.

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  If that person would not be eligible to receive an underpayment on the deceased claimant’s record (see GN 02301.030), explain to them that we can take another look at the deceased person’s claim if someone who would be due an underpayment on the deceased person’s record contacts us.