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Same-sex marriage: federal standards for benefits after DOMA

| Aug 10, 2013 | Marriage |

In Unites States v. Windsor, the US Supreme Court repealed Section 3, of the Defense of Marriage Act (DOMA). This historic decision results in federal recognition of same-sex civil unions and the attendant federal benefits that flow from that valid union. But the federal recognition and benefits are limited to those few states where same-sex couples can marry.

Uncertainty remains for same-sex married couples as to their eligibility for federal benefits. Uncertainty because Section 2 of DOMA remains. DOMA, Section 2, allows States to not recognize same-sex unions performed in another state. Currently, there are 13 states (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington) and the District of Columbia that recognize gay civil unions.

The conundrum lies in the fact that federal agencies differ in recognizing same-sex marriages based on place of celebration or place of residence. The Social Security Administration, Internal Revenue Service, Family Medical Leave Act, Department of Veteran Affairs, and US Bankruptcy Court look to where the parties reside. And the same-sex married couple is only eligible for those federal benefits if they live in a state where their union is legal. But the Department of Defense and Immigration look to where the parties married. The “place of celebration” standard means if a gay couple married in a state that allows same-sex marriage, their union is valid and the state law where they live does not control.

In a nutshell, federal benefits depend on whether a gay couple marries or resides in a state where same-sex marriage is legal. For example, if a same-sex couple married and lived in Washington, they would be entitled to the full spectrum of federal benefits. They would also have the ability to dissolve their marriage and divide their assets and debts per Washington law. If retirement benefits were at issue, they would be able to divide that asset through a Qualified Domestic Relations Order (QDRO). But if they moved to Kansas, they would not receive federal benefits (social security survivors’ benefits for example) nor would they be able to divorce since Kansas does not recognize their marriage.

This blog post is part one of a two part series on the complexities that the two federal standards (“place of residence” and “place of celebration”) pose for the same-sex couple.

Source: www.npr.org, “After DOMA: What’s Next For Gay Married Couples” by Liz Halloran, June 26, 2013