1,110 Federal Benefits for Same-Sex Couples with DOMA Gone

Two grooms at beach wedding


When the U.S. Supreme Court ruled that part of the discriminatory Defense Against Marriage Act was unconstitutional, it opened the way for same-sex couples who are legally married in their states to reap the fruits of federal benefits.

Advantages that married opposite-sex couples have enjoyed in the realm of taxes, social security, estate planning, immigration and other sectors have now been extended to all spouses.

“There are over 1100 federal benefits, privileges and obligations that turn on the issue of whether a couple is ‘married’ for purposes of triggering these federal rights and protections,” says Lisa A. Linsky, partner-in-charge of LGBT Diversity and Inclusion at McDermott Will & Emery and an officer on the National Board of Lambda Legal. “Same-sex married couples will now have the assurance that their marriages will be respected and protected by the United States Federal Government.”

However, there still remains much work to be done and likely more litigation to play out to determine exactly how and in what circumstances the benefits come into play.


Respect and Dignity

Attorney Lisa A. Linsky headshot

Lisa A. Linsky

Some of the federal benefits come in the form of workplace rules for private companies. While some companies already have inclusive policies, those that do not that are located in states with marriage equality will now have to expand their offerings. “Such benefits include coverage for a spouse’s health insurance, payment for a spouse’s health insurance with pre-tax dollars, addition of spouses to flexible spending arrangements, ability to take up to 12 weeks of leave pursuant to the Family and Medical Leave Act to care for a spouse, and a spouse’s entitlement to survivor benefits from the employee’s federally-recognized pension,” Linsky says.

 Among the overall benefits that same sex couples are now eligible for:

  • Citizens are now able to get green cards for their same-sex spouses, and the U.S. Citizenship and Immigration Services started issuing visas immediately.
  • Married couples have the option to file joint income tax returns.
  • Employers who offer spousal health coverage now must offer it to LGBT spouses as well, and COBRA coverage is also available to spouses if the employee gets fired.
  • Same-sex spouses are now eligible for survivor benefits in federally-recognized retirement plans as well as Social Security benefits.
  • A member of a married couple does not have to pay the estate tax when one partner passes away.
  • Military spousal benefits including insurance, housing allowances, moving and base access privileges and legal assistance are now open to gay married couples.
  • The Family Medical Leave Act allows for unpaid leave for spouses for major life events like childbirth or illness.

“The Supreme Court’s decision sends a clear and compelling message that these relationships are entitled to the same respect and dignity that are afforded opposite- sex marriages,” says Linsky. “This decision represents an affirming statement to our children and communities that same-sex marriages are no longer to be treated as ‘separate but equal.'”


Portable Benefits

Not all same-sex married couples will be able to enjoy all the benefits right away. There is still no obligation for the 37 states that do not perform gay marriages to recognize those performed in other states, leaving an open question as to exactly what benefits are portable or not.

“Because only about a dozen states recognize same sex marriages and section 2 of DOMA, which allows states to refuse to recognize same-sex marriages performed under the laws of other states, remains intact, it’s possible that same sex married couples could gain or lose benefits depending on where they live,” says Linda Panszczyk, senior legal analyst at Wolters Kluwer.

Federal agencies are currently revising their rules and are expected to issue new guidelines about what benefits are extended to whom when, but it’s still unclear how long the process will take. Also, more lawsuits to resolve some of the unanswered questions are a strong possibility.

“If regulatory guidance is issued and it indicates that the ruling means that same sex marriages validly performed in one state are valid for federal law purposes regardless of the state of residence, some experts believe there could well be an avalanche of lawsuits seeking relief from any federal requirements,” Panszczyk says. “This is not an issue that is going to go away.”

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