Gay man seeks court order for Social Security to recognize his common-law marriage

John D. Roberts wants a federal judge to order the Social Security Administration to recognize his same-sex common-law marriage so he’ll receive spousal-survivor benefits. 

Roberts, 64, of North Philadelphia, initially applied for the benefits in February 2016, after spouse Bernard O. Wilkerson passed away. However, since the men only were officially married for three months, Social Security denied his request for monthly spousal-survivor benefits. 

In September 2016, Orphans’ Court Judge George W. Overton ruled that the men were in a common-law marriage dating back to July 4, 1990. Despite Overton’s ruling, the Social Security Administration continues to refuse to recognize Roberts’ 25-year marriage for purposes of monthly spousal-survivor benefits, according to Roberts’ lawsuit.

Roberts’ May 31 lawsuit doesn’t specify the amount of benefits in dispute.

M. Patrick Yingling, an attorney for Roberts, said that a Social Security employee told Roberts the agency doesn’t have a policy on same-sex common-law marriage, giving no indication on when such a policy would be developed.

“Social Security is not respecting Mr. Roberts’ 25-year marriage to his late spouse. They are singling him out because of the nature of his same-sex marriage. There is no rational reason to discriminate against someone who was in a same-sex common-law marriage.” 

Yingling said a court order is necessary. 

“We are seeking a federal-court order that the Social Security Administration must evaluate Mr. Roberts’ application [for monthly benefits] based on his common-law marriage, dating back to 1990.”

The lawsuit could help others in a similar situation, Yingling added.

“We are also seeking a federal-court order that the Social Security Administration may not refuse to recognize same-sex common-law marriages that are recognized by state courts. This will prevent other people from going through what Mr. Roberts is going through.”

The attorney expressed hope that Roberts will get a favorable outcome. 

“It’s our hope that once the federal court issues the marriage-recognition order, then Social Security will award the benefits without Mr. Roberts having to jump through any more hoops,” Yingling said. “Our primary goal is for the Social Security Administration to recognize Mr. Roberts’ marriage and therefore grant full benefits. We hope this will be done without protracted litigation. But we are prepared to do what is necessary to protect Mr. Roberts’ rights.”

In an email, Assistant U.S. Attorney David A. Degnan said: “We do not have any comment at this time. Thanks.”

Daniel N. O’Connor, a spokesperson for the Social Security Administration’s regional office, said: “Social Security does not comment on pending litigation.” 

The case has been assigned to U.S. District Judge Berle M. Schiller.

Roberts issued this statement: “I want to make sure that others in my situation receive the benefits they deserve. It seems wrong that Social Security won’t recognize our 25-year marriage if a judge already found it to be a legal marriage. I’m very grateful to Patrick Yingling and the Reed Smith law firm for helping me through this process.”