A Year Post Windsor: Are Same Sex Spouses Able to Access Their Federal Benefits?
The United States Department of Justice today issued its formal report on its efforts, together with other federal agencies, to implement the decision the Supreme Court’s historic Windsor decision striking down Section 3 of the Defense of Marriage Act across the entire government. There were also announcements released in conjunction with the report that clarify or granted some outstanding issues, including the news that the Family Medical Leave Act’s benefits will soon extend to married same-sex couples throughout the the U.S.
I have initially reviewed Justice’s report, and in my opinion the largest remaining hitch with respect to getting same sex spouses federal benefits is that the Social Security Administration (SSA) and the Department of Veterans Affairs (VA) are required by federal statute to confer marriage-based benefits based on the law of the state in which the married couple resides or resided. Essentially, those two agencies are prohibited from conferring benefits on a “place of celebration” standard, the result of which is that SSA and the VA cannot extend benefits to same sex married couples who live in states that do not allow or recognize same sex marriages (so-called “non-recognition states.”) There is a “Respect for Marriage” bill currently pending that would create a uniform place of celebration rule and bring the SSA and the VA in line with other federal agencies.
In the meantime, both the VA and SSA have attempted to extend what benefits they can under the current statutory limitation. For example, one area in which the VA has brouad statutory discretion is in the are of burial benefits. The VA’s Acting Secretary has announced today that he will allow any individual in a committed relationship to be buried in a national cemetery This will allow the inclusion of same sex spouses where the “state of domicile” provision would otherwise govern. In addition, SSA will extend survivor benefits, lump sum death benefits and aged spouse benefits to same-sex couples if one partner could inherit from the other partner on the same terms as a spouse under state law. This expands the number of states in which these benefits can be extended. That said, until a law is passed that allows the VA to look to the “place of celebration,” (or theoretically the current law is found unconstitutional) full VA benefits will not be available to same sex married couples living in non-recognition states. VA benefits are major benefit, and the “state of domicile” requirement results in a lot of same sex married couples being denied those benefits.
Like the VA, SSA made several announcements today that evidence their efforts to extend benefits to same sex spouses in non-recognition states without running afoul of the “state of domicile” rule. For example, we have spoken about the fact that many people who applied for social security survivor benefit’s claims had been help pending a guidance regarding how to process those claims. That guidance was released today, and in accordance with statute, unsurprisingly indicates that a “state of domicile” standard will be used — in this instance the relevant state of domicile is that of the individual who paid into social security at the time of his or her death. A piece of good news for survivor benefits for couples who had civil unions is that the SSA has now issued guidance on this subject, and it provides that the SSA will recognize a claimant as married for social security purposes if state law allows the claimant to inherit from his or her partner on the same terms as a spouse could inherit. This is a liberal interpretation we are pleased about, and I am looking forward to calling some clients with that news.
That all said — as with VA benefits — SSA benefits are important, even critical benefits to many people, and the “state of domicile” rule that the VA and SSA remain required to operate under results in the denial of those benefits to all same sex married folks who happen to live in non-recognition states.
We need a change of federal statute so that a “place of celebration” standard can be uniformly applied throughout all federal agencies.
