Kathy Phelan lost her spouse, Kaye, to cancer nine months after they married.
Because of the patchwork of same-sex marriage laws across the country, Phelan now has to fight Social Security for an extra $1,224 a month while mourning her partner of 34 years.
Phelan wouldn’t have to fight if she was straight. She wouldn’t have to fight if they had lived in a different state. And she wouldn’t have to fight if Kaye’s life had lasted just five months longer.
The couple legally married in Washington State in 2013. But Phelan, 60, is denied her survivor benefit from Social Security because Kaye died shortly before their home state of Arizona ended its ban on same-sex marriage in October of 2014.
“How can a worker paying into Social Security not receive the benefits in one state that they would qualify for in another state?” she said.
For Phelan, the impact would be about $1,224 more a month (starting at age 66) for the rest of her life. Assuming she lives until 85, she would be missing out on $279,072.
Kaye, a geriatric nurse practitioner and college professor, earned more money during her lifetime than Phelan, who worked as a teacher and artist. As a legally married couple, Phelan would be entitled to receive a survivor benefit equal to the amount of her spouse’s entire Social Security check. In her case, that monthly check would be $2,160 — which is $1,224 more than what she would get from her own benefit.
But in a landmark decision Friday, the Supreme Court ended the ban on same-sex marriage in the 13 states that still don’t recognize it.
It remains unclear if the ruling will help Phelan’s case. Before Friday, the Social Security Administration said it would not extend her the same benefits of a heterosexual married couple because at the time of Kaye’s death, they were not living in a state that recognized same-sex marriages. That fact will never change.
“The Supreme Court decision will have a big impact on my life if it qualifies me for Social Security survivor benefits, but sadly, I’m afraid it might be too late in my case,” Phelan said.
Liz Brenner, an attorney in Texas, is hopeful that the ruling will allow Phelan and others to retroactively receive survivor benefits. Brenner has quite a few clients in similar situations.
If the Supreme Court decision doesn’t resolve her case, Phelan is committed to keep fighting — for the financial benefit and for the rights of all same-sex couples.
“Even if I miss ending up on the right financial side of all these historic changes by just a little squeak of time, I still consider myself exceptionally lucky,” she said. “I am grateful that my spouse and I finally got some of the equal protection under the law that we never could have imagined when we met in 1979 … I am grateful that equal treatment under the law is on the horizon.”
