Why marriage equality matters for older Americans

For more than thirty years, Kathy Murphy and Sam Baker lived together in a committed relationship.  However, because Kathy was white and Sam was African-American, the State of Texas refused to issue them a marriage license.  Eventually, the couple travelled to Massachusetts, where they were married.  That same year, when Sam was 60, he was diagnosed with an aggressive form of cancer.  Sam died two years later.  Like most widows, Kathy applied for Social Security spousal survivor benefits.  However, because Texas did not recognize Kathy’s marriage to Sam, the Social Security Administration informed Kathy it did not consider her a “widow” and, therefore, denied her claim, causing her significant emotional and financial harm.

A true story from the Civil Rights Era?  Not exactly.  The events described here took place just a few years ago.  However, Kathy was not married to an African-American man named Sam.  Her spouse was a woman named Sara. 

{mosads}Older lesbians, gay, bisexual, and transgender (“LGBT”) people like Cathy and Sara confront the same challenges as other older people:  declining health, loneliness, and reduced income.  Indeed, older LGBT people face especially great physical, emotional, and financial challenges.  LGBT elders tend to have higher rates of depression, poorer physical health, and – contrary to popular belief – lower incomes than their peers.  Moreover, LGBT older adults often do not have as strong a social support network as their contemporaries.  LGBT elders are twice as likely to live alone, half as likely to have close relatives to call for help, and four times less likely to have children to assist them.

Marriage has proven highly effective for improving the lives of many older people.  Married people tend to have lower rates of depression, disability and disease than unmarried people.  Married people also tend to live longer than single people.  On average, married men live eight to seventeen years longer than single men, while married women live seven to fifteen years longer than single women.  Married people also tend to be more prosperous than their unmarried peers.  For example, married couples in their sixties typically have almost ten times as much in financial assets as single people in the same age group. 

Given the unique challenges faced by older LGBT people, the recognition, security, and mutual support that marriage provides could be even more beneficial for older same-sex couples than it has been for older straight couples.  Yet, some states continue to exclude same-sex couples from marriage.  As a result, same-sex couples must worry about being denied rights that straight couples can take for granted.  

These rights become ever-more-important as couples age.  If a woman falls ill or is injured, her husband may be able to take up to 12 weeks of unpaid leave from her job to care for her.  If a man becomes incapacitated, his wife can make critical healthcare decisions for him.  If the man dies without a will, his widow will automatically inherit their marital home and will owe no taxes on the inheritance.  She can also obtain Social Security survivors benefits. 

None of these rights is available to same-sex couples who are unable to marry.  The aging gay man who stays home from work to care for his sick or injured partner can be fired.  The elderly lesbian who becomes incapable of taking care of herself may have a disapproving sibling appointed as her conservator, and may be prevented from having contact with the woman she loves. 

While many states now allow same-sex couples to marry, this does not entirely solve the problem.  A straight couple that was married in Massachusetts will still be considered married if they move to Mississippi.  Not so for married same-sex couples:  They may lose their rights if they move to a state that does not recognize their marriage.   As a result, if a gay man dies without a will, his estate may go to a distant relative, rather than the man he lawfully wedded when the couple lived in another state.  Similarly, if two women marry in one state, but later move to a state that does not recognize their marriage, the surviving spouse may have to sell their marital home in order to pay the inheritance taxes.  

Incredibly, two years after the Supreme Court struck down the Defense of Marriage Act’s prohibition on federal recognition of same-sex marriages, some married same-sex couples are still being denied federal benefits especially important to older adults.  This is because some federal agencies use the “place of domicile” rule to determine whether a couple is considered married.  As a result, bereaved widows like Kathy continue to be denied Social Security survivors’ benefits because the state in which they live does not recognize their marriage. 

The Supreme Court will soon consider whether states are obligated to grant same-sex couples the same marriage rights as other couples.  If the Court finds that the states are required to do so, it will remove some of the uncertainty that darkens the lives of many older same-sex couples.  And it will provide those couples with an opportunity to live healthier, happier, longer, and more prosperous lives.

Adams is executive director for Services and Advocacy for Gay, Lesbian, Bisexual, and Transgender Elders (“SAGE”), which filed in amicus brief in the Supreme Court’s marriage case.  Nadler, a partner in the Washington DC office of Squire Patton Boggs, served as SAGE’s counsel.