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 00210.810D.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, at no time did an unconstitutional State law prevent the couple from marrying. As a result, do not find that the couple would have married but for an unconstitutional State law and do not find that the claimant is entitled to additional consideration pursuant to Thornton. Proceed to GN 00210.810F in this section for further instructions on denying the claim, affirming the initial determination at the reconsideration level, or refusing to reopen a previously filed application.

Tim and John began a relationship in California on July 4, 2016, and became engaged on February 14, 2017. Tim unexpectedly passed away on July 1, 2017. Same-sex marriage became legal in all states on June 26, 2015, per the Obergefell decision. Because Tim and John began a relationship after the date same-sex marriage became legal in all states, at no time did an unconstitutional State law prevent them from marrying. As a result, John is not entitled to additional consideration pursuant to Thornton. Also, do not find that Tim and John would have married but for an unconstitutional State law.

If the NH died before June 26, 2017, consider all available evidence of the factual circumstances that resulted in the couple not marrying.

Some questions you may consider in making the determination:

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

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  What date would the couple have married if a State law had not prohibited them from doing so?

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  Did the law of the State(s) 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.

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  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?

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  Did the couple exchange commitment rings?

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

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

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  Did the claimant and the NH share joint responsibility to care for one another?

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  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?

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  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?

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  Would the claimant and the NH have been otherwise eligible to marry if the law had not barred same-sex couples from marriage? See below for considerations on the couple's eligibility to marry.

Consider the following questions when determining whether the parties were eligible to marry:

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  Were the claimant and NH related to each other in a way that would prevent them from marrying?

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  Were the claimant and NH both of legal age to marry during their relationship (generally, this is age 18 or over)?

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  Were the claimant and NH prevented from marrying each other because one of them was married to someone else?

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, Janice and Abigail lived together continuously in Georgia. During their relationship, they purchased a house and three cars together. Janice named Abigail as the beneficiary on her life insurance policy, and Abigail named Janice as the beneficiary on her policy. Abigail also named Janice as the beneficiary of her retirement benefit at work. Janice and Abigail expressed to friends and family their desire to be married, and Janice alleges she and Abigail would have married as early as June 1990 had they been permitted to do so. Abigail died in December 2010. Same-sex marriage became legal in Georgia on June 26, 2015. Janice applied for widow’s benefits on Abigail’s earnings record. . In this case, the evidence supports the conclusion that but for Georgia’s unconstitutional prohibition on same-sex marriage, Janice and Abigail would have married in June 1990. As a result, find that Janice and Abigail would have married on June 1, 1990 (the earliest date supported by the evidence) but for Georgia’s unconstitutional State law. Process Janice’s claim for benefits as Abigail’s surviving spouse. Accept Janice’s allegation (which is accompanied by credible supporting evidence) that she and Abigail would have married in June 1990 and use June 1, 1990 as the marriage date.

Example 2: Beginning in January 1990, Greg and Larry lived together continuously in Hawaii. Same-sex marriage became legal in Hawaii on December 2, 2013. Greg and Larry talked about getting married but never did so. Larry died in October 2015. Greg applied for widower’s benefits on Larry’s earnings record Greg’s application for widower’s benefits should not be granted because the evidence does not show the couple would have married but for a State law prohibiting same-sex marriage. Instead, under Hawaii law, the couple could have married as early as December 2013, nearly two years before Larry’s death, but they chose not to. It was the couple’s personal decision to wait that prevented them from satisfying the marriage requirement, not any unconstitutional State law. As a result, do not find that Greg and Larry would have married but for an unconstitutional State law and refer the claim to a management official or a CTE for secondary review of the determination before adjudicating the claim (for refusals to reopen, manually clearing the claim).

Example 3: Beginning in January 1995, Tim and Ricardo lived together continuously in Ohio. On January 1, 2000, they held a commitment ceremony with family and friends, officiated by the minister of their church. Their minister issued them a certificate of holy union. Tim alleges that he and Ricardo would have gotten married on that day if they were able to do so under State law. Ricardo died in June 2010, five years before same-sex marriage became legal in Ohio on June 26, 2015. Tim applied for widower’s benefits on Ricardo’s earnings record. In this case, the evidence supports the conclusion that Tim and Ricardo would have married on January 1, 2000, the date of their commitment ceremony, if not for Ohio’s unconstitutional prohibition on same-sex marriage. As a result, find that Tim and Ricardo would have been married on January 1, 2000, but for an unconstitutional State law, and process Tim’s claim for benefits as Ricardo’s surviving spouse. Accept Tim’s allegation (which is accompanied by credible supporting evidence) that he and Ricardo would have married on January 1, 2000, for purposes of indicating a marriage date.

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

If the NH died on or after June 26, 2017, and the couple had not married, the agency will presume that an unconstitutional State law did not prevent the claimant and the NH from marrying 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 for reasons other than an unconstitutional State law. The claimant can provide evidence to rebut this presumption by the totality of the circumstances to explain why they did not marry before June 26, 2017, even though same-sex marriage was legal. In other words, the claimant is still able to provide evidence to explain that the couple did not marry 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 by June 26, 2017:

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  Conduct a thorough interview with the claimant about the circumstances that resulted in the claimant not marrying the NH. Document those circumstances on the RMKS screen in the MCS application path, a RPOC in MCS, or other electronic writing.

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  Consider all available evidence of the factual circumstances that resulted in the couple not marrying by June 26, 2017 (see GN 00210.810D.2.a and E in this section, GN 00301.010, and GN 00301.305).

Some questions you may consider in making the determination:

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  Why didn't the couple marry 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?

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  Was one member of the couple deployed overseas without interruption 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 January 1980, Beth and Maria lived together continuously in Florida. During their relationship, they purchased a house and three cars together. Beth named Maria as the beneficiary on her life insurance policy, and Maria named Beth as the beneficiary on her policy. Maria also named Beth as the beneficiary of her retirement benefit at work. Beth and Maria expressed to friends and family their desire to be married, and Beth alleges she and Maria would have married as early as June 1990 had they been permitted to do so. Maria was diagnosed with Alzheimer’s disease in 2010. She became incapacitated and unable to care for herself in 2012. Beth cared for Maria until she died on March 1, 2019. Same-sex marriage became legal in Florida on January 5, 2015. Beth applied for widow’s benefits on Maria’s earnings record. In this case, the evidence supports the conclusion that but for Florida’s unconstitutional prohibition on same-sex marriage, Beth and Maria would have married in June 1990, and were unable to marry before June 26, 2017, because Maria was incapacitated due to her illness. The totality of the circumstances rebuts the presumption. As a result, find that Beth and Maria would have married on June 1, 1990 (the earliest date supported by the evidence) but for Florida’s unconstitutional State law. Process Beth’s claim for benefits as Maria’s surviving spouse. Accept Beth’s allegation (which is accompanied by credible supporting evidence) that she and Maria would have married in June 1990 and use June 1, 1990, as the marriage date.

Example 2: Beginning in January 1990, Joe and Larry lived together continuously in Hawaii. Same-sex marriage became legal in Hawaii on December 2, 2013. Joe and Larry talked about getting married but never did so. Larry had a stroke on June 26, 2016, and became incapacitated and unable to care for himself as of that date. Joe cared for Larry until he died on March 1, 2019. Joe applied for widower’s benefits on Larry’s earnings record. We should not award Joe widower's benefits because the evidence does not show the couple would have married but for a State law prohibiting same-sex marriage. Instead, under Hawaii law, the couple could have married as early as December 2013, more than two years before Larry’s stroke, but they chose not to. It was the couple’s personal decision to wait that prevented them from satisfying the marriage 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 but for an unconstitutional State law and do not find that Joe, the claimant, is entitled to additional consideration pursuant to Thornton.

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 claimant would have met the marriage requirement but for an unconstitutional State law prohibiting same-sex marriage, and the claimant meets all other factors of entitlement for widow(er)’s benefits, determine what date the claimant would have married the NH and adjudicate the application recognizing the claimant as the NH's surviving spouse.

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  If the evidence supports the date the claimant alleges they would have married the NH if not prohibited by State law, as recorded on the NH Marriage (NMAR) and Beneficiary Marriage (BMAR) screens, enter “Y” in the marriage date “Proof” field on these screens. When the evidence supports a different date of marriage from what the claimant alleged, update the NMAR and BMAR screens in MCS with the date of marriage that was determined by evaluation of the evidence and enter “Y” in the marriage date “Proof” field on these screens.  

  NOTE 1: If the claimant identifies a time period when they would have married the NH, and the information provided supports that time period, enter the earliest date within that time period for the claimant’s marriage date. For example, if the claimant alleges the couple would have married in June or July 1990, enter June 1, 1990, as the marriage date.

  NOTE 2: If you determine the couple would have married at least 9 months before the NH’s death but the information provided does not allow you to identify a specific date on which they would have married, enter a date that is exactly 9 months earlier than the date of the NH’s death. However, if you determine the marriage date would not have been at least 9 months before the NH’s death, submit for a legal opinion following the instructions in GN 01010.815.

• •

  Review the claimant’s record to determine whether the claimant is currently receiving other benefits. If the claimant is entitled to widow(er)’s benefits pursuant to Thornton and is currently receiving other benefits, see GN 00210.810F.1.c in this section.

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  Enter listing code “529” on the Decision Input (DECI) screen in MCS.

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  If the claimant is entitled to widow(er)’s benefits pursuant to Thornton, 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 claim will be processed via Automated 101 (A101) or 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 they must follow the Thornton processing instructions in this section.

If you determine the claimant is entitled to additional consideration pursuant to Thornton and you determine that the couple would not have married even if there had been no unconstitutional State law prohibiting same-sex marriage, follow these instructions:

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

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  If the management official or CTE concurs with the determination, the management official or CTE will prepare a RPOC in MCS clearly stating the rationale for determining the claimnt does not qualify for benefits under Thornton v. Commissioner.

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  If the management official or CTE disagrees with the determination, the management official or CTE will prepare a RPOC in MCS clearly stating the rationale for determining the claimant qualifies for benefits under Thornton v. Commissioner. To resolve conflicting rationales, contact Regional Office (RO) Support Staff for additional guidance. If the final determination is the claimant qualifies for benefits under Thornton v. Commissioner, see instructions in GN 0021.810F.1.a in this section.

• •

  If the final determination is the claimant would not have married, enter an “N” in the marriage date “Proof” field on the NMAR and BMAR screens in MCS.

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  Enter listing code “529” 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 denial using standard procedures.

If you determine the claimant is not entitled to additional consideration pursuant to Thornton (see GN 00210.810D in this section) and you determine that the couple would not have married even if there had been no unconstitutional State law prohibiting same-sex marriage, follow these instructions:

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  Do not obtain a secondary review.

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  Enter an “N” in the marriage date “Proof” field on the NMAR and BMAR screens 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 denial using standard procedures.

If an individual eligible for widow(er)’s benefits under Thornton 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 we determined that a claimant and the NH would have been married had they not been prevented from marrying by unconstitutional laws barring 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) applications 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 an individual eligible for widow(er)’s benefits pursuant to Thornton 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. Follow instructions in GN00210.810F.1.a in this section for processing the award.

For claims pending at the reconsideration level of the administrative review process, if reversing a prior denial of benefits based on the decision in Thornton v. Commissioner:

• •

  If the evidence supports the date the claimant alleges they would have married the NH if not prohibited by State law, as recorded on the NMAR and BMAR screens, enter “Y” in the marriage date “Proof” field on these screens. When the evidence supports a different date of marriage from what the claimant alleged, update the NMAR and BMAR screens in MCS with the date of marriage that was determined by evaluation of the evidence and enter “Y” in the marriage date “Proof” field on these screens.  

  NOTE 1 : If the claimant identifies a time period when they would have married the NH and the information provided supports that time period, enter the earliest date within that time period for the claimant’s marriage date. For example, if the claimant alleges the couple would have married in June or July 1990, enter June 1, 1990, as the marriage date.

  NOTE 2 : If you determine the couple would have married at least 9 months before the NH’s death but the information provided does not allow you to identify a specific date on which they would have married, enter a date that is exactly 9 months earlier than the date of the NH’s death. However, if you determine that the marriage date would not have been at least 9 months before the NH’s death, submit for a legal opinion following the instructions in GN 01010.815.

• •

  Review the claimant’s record to determine whether the claimant is currently receiving other benefits. If the claimant is entitled to widow(er)’s benefits pursuant to Thornton and is currently receiving other benefits, see GN 00210.810F.1.c in this section.

• •

  Enter listing code “529” on the DECI screen in MCS.

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  If the claimant is entitled to widow(er)’s benefits pursuant to Thornton, enter a “Y” next to “Incomplete” on the NOT3 screen for an incomplete notice and effectuate the award using standard procedures.

For claims pending at the reconsideration level of the administrative review process, if you determine the claimant is entitled to additional consideration pursuant to Thornton and the couple would not have married even if there had been no unconstitutional State law prohibiting same-sex marriage, follow these instructions:

• •

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

• •

  If the management official or CTE concurs with the determination, the management official or CTE will prepare a RPOC in MCS clearly stating the rationale for determining the claimant either does or does not qualify for benefits under Thornton v. Commissioner.

• •

  If the management official or CTE disagrees with the determination, the management official or CTE will prepare a RPOC in MCS clearly stating the rationale for determining the claimant either does or does not qualify for benefits under Thornton v. Commissioner. To resolve conflicting rationales, contact RO Support Staff for additional guidance. If the final determination is the claimant qualifies for benefits under Thornton v. Commissioner, see instructions in GN 00210.810F.1.a in this section.

• •

  If the final determination is the claimant would not have married, enter an “N” in the marriage date “Proof” field on the NMAR and BMAR screens in MCS.

• •

  Enter listing code “529” 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.

For claims pending at the reconsideration level of the administrative review process, if you determine the claimant is not entitled to additional consideration pursuant to Thornton (see GN 00210.810D in this section) and an unconstitutional State law prohibiting same-sex marriage did not prevent the couple from being married:

• •

  Do not obtain a secondary review.

• •

  Enter an “N” in the marriage date “Proof” field on the NMAR and BMAR screens in MCS.

• •

  Enter listing code “529” 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 we denied the initial claim and reconsideration using denial code 030 (Not the spouse/widow(er), under State law or deemed marriage provision), 208 (Cash benefits (same sex marriage) Pre-Windsor Court decision 06/26/13), or 209 (Cash benefits (same sex marriage) denied based on non-recognition state of domicile).

• •

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

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  Ensure the subject line of any email correspondence includes the comment “Thornton court case”.

• •

  FO will add comment “Use case characteristic THOR to identify as Thornton District Court Decision Case” in the body of any email correspondence.

If, after developing the evidence, you determine the couple would have been married but for an unconstitutional State law prohibiting same-sex marriage:  

• •

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

• •

  Prepare a RPOC in MCS clearly stating the rationale for determining the claimant qualifies for benefits under Thornton v. Commissioner. Explain (1) your reasons for concluding the couple would have married if an unconstitutional State law had not prohibited same-sex marriage before the NH died; (2) if you find the couple would have married, how you determined what date they would have married; and (3) whether or not the claimant is entitled to widow(er)’s benefits pursuant to Thornton.  

• •

  Follow the instructions in GN 00210.810 F.1.a in this section.

If, after developing the evidence, you determine the couple would not have married even if there had been no unconstitutional State law prohibiting same-sex marriage:

• •

  Do not reopen the claim.

• •

  Prepare a RPOC in MCS clearly stating the rationale for determining the claimant does not qualify for benefits under Thornton v. Commissioner. Explain your reasons for concluding the couple would not have married even if there had been no unconstitutional law prohibiting same-sex marriage.

• •

  Refer the case to a management official or CTE for a secondary review of the determination not to reopen the prior denial, before sending any notice in GN 00210.810G in this section.

  NOTE: If the claimant is not entitled to additional consideration pursuant to the Thornton decision (see GN 00210.810D in this section), the claim does not require a secondary review.

• •

  If the management official or CTE concurs with the determination, the management official or CTE will prepare a RPOC in MCS clearly stating the rationale for determining the claimant does not qualify for benefits under Thornton v. Commissioner.

• •

  If the management official or CTE disagrees with the determination, the management official or CTE will prepare a RPOC in MCS clearly stating the rationale for determining the claimant qualifies for benefits under Thornton v. Commissioner. To resolve conflicting rationales, contact RO Support Staff for additional guidance. If the final determination is the claimant qualifies for benefits under Thornton v. Commissioner, see instructions in GN 00210.810F.1.a in this section.

• •

  If the final determination is the surviving partner does not qualify for benefits under Thornton v. Commissioner, manually clear the claim.

• •

  Prepare and send the “Thornton Class Action - Refusal to Reopen” notice via DPS, which includes Universal Text Identifiers (UTI) CAS029 and CAS027. For UTI language, see GN 00210.810H in this section.

If the claimant is deceased and someone contacts SSA on their behalf based on the Thornton decision, such as a family member of the deceased claimant or other individual familiar with the relationship:

• •

  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), follow the instructions in GN 00210.810F in this section.

• •

  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.