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How DOMA Ruling Will Affect Same-Sex Spouses

Many details about benefits and rights will remain unsettled for a while — 35 states do not recognize same-sex marriage — but here are answers to some common FAQs

Californians celebrate the Supreme Court ruling that overturned DOMA. What rights and benefits will same-sex couples have after DOMA? (Kevork Djansezian/Getty Images)

June 2013: Californians celebrate the Supreme Court ruling that overturned DOMA. — Kevork Djansezian/Getty Images

En español | Historically, same-sex married couples have been denied many benefits and rights enjoyed by opposite-sex married couples. But since the U.S. Supreme Court has struck down a key provision of the Defense of Marriage Act (DOMA), some of these issues will vanish. 

See also: AARP 40th anniversary tribute to the Stonewall Riots that sparked a revolution

The ruling — that the states, not the federal government, properly regulate marriage — will affect more than 1,000 federal statutes and regulations. An IRS decision in late August may be the most significant clue so far that many federal agencies may seek to level the playing field for all legally married same-sex couples.

Here are answers to some common questions about the ruling's effects on same-sex couples.

Does the Supreme Court's ruling mean that the federal government has to recognize same-sex marriage?

Yes, at least for couples who were married and currently reside in states that allow same-sex marriage — called recognition states. Some federal agencies will also recognize legally married same-sex couples who are currently living in non-recognition states.  

Do all gay and lesbian couples now have a constitutional right to get married?

No. Each state may still make its own decision about whether to allow same-sex couples to marry. While 13 states and the District of Columbia expressly allow same-sex marriage, 35 states have laws or constitutional amendments prohibiting same-sex marriage. 

If a couple married in a state or country that allows same-sex marriage, do other states have to recognize their marriage?

No. The Supreme Court's ruling in the DOMA case only applies to federal recognition of legal same-sex marriage. The court only struck down Section 3 of DOMA, which defined marriage as between one man and one woman. The court did not consider Section 2 of DOMA, which leaves it up to each state to determine whether it will recognize same-sex marriages performed in other states.  

Will all federal agencies be required to recognize same-sex marriage?

That's a bit more complicated. Some parts of the federal government, such as the military and the IRS, will honor your marriage if you were married in any recognition state, no matter where you now live. Other agencies, such as the Social Security Administration, by law grant benefits based on where you reside, or your "state of domicile," at the time you file for them. So if you live in a non-recognition state, you may not be entitled to certain benefits even if you married in a state that honored it. 

Next page: How the DOMA ruling will affect taxes, caregiving, health insurance and more. »

May same-sex couples file federal tax returns as "married"?

Yes. In late August, the IRS announced that all legally married same-sex couples may file as "married," even if they do not live in a recognition state. 

Non-recognition states may still require legally married same-sex spouses to file state returns as "single," so some couples could have to file joint federal returns and individual state returns. 

What about my past returns? Can those be amended?

Yes. According to the IRS announcement in August, you may amend returns from previous years. Refunds may be available if health insurance for your same-sex spouse was counted as income or if you paid excessive Social Security or Medicare taxes. The IRS will allow you to amend your tax returns and claim a refund three years after your return was filed or two years after the taxes were paid, whichever is later. For more information, follow this link.

What about past tax underpayments?

If you and your same-sex spouse would owe taxes for past years now that the federal government recognizes your marriage, you do not have to pay the difference.  

Will health insurance coverage be affected?

In many cases, yes. For specifics, check with your employer. Here are several possible broad changes:

  • Although many private employers had already allowed workers to add same-sex spouses to their health plan, more will now. So will the federal government. Whether workers will be able to add a spouse right away isn't clear.

  • In the past, individuals who had health insurance through their same-sex spouses had to pay taxes on the value of that insurance, because it was considered to be income. The value of the health insurance will no longer be taxed.

  • Workers who have flexible spending arrangements through their employers will be able to add same-sex spouses.

Any changes to Medicare?

Yes. In August, the Department of Health and Human Services announced that same-sex spouses covered under private Medicare plans are entitled to Medicare coverage for care in a nursing home where their spouse lives.  

Next page: How individual state laws affect inheritance taxes for same-sex couples. »

If a same-sex husband or wife gets sick, can the spouse take time off from work for caregiving?

Under the Federal Family and Medical Leave Act (FMLA), employees of covered companies may take up to 12 weeks unpaid leave to care for their spouses. Therefore, if you are married and live in any recognition state, you and your spouse are entitled to FMLA leave. If you were married in a recognition state or country but live in a non-recognition state, however, you might not benefit from FMLA unless you are a federal employee.

How about Social Security spousal benefits?

Again, the answer depends on where you currently live. Social Security uses the law of the state where you reside at the time you file for benefits to decide whether you are married and entitled to benefits. If your current state recognizes marriages performed in another state, you may be entitled to spousal benefits.  If you apply while living in another country that has an agreement with the United States, Social Security will look to the law in the District of Columbia (which recognizes same sex marriate) to determine if you have a valid marriage.

What about military and veterans' benefits? Is a same-sex spouse entitled to those?

On the day the court ruled, Defense Secretary Chuck Hagel said the Pentagon will begin the process to extend health care, housing and other benefits to the same-sex spouses of service members. "That is now the law, and it is the right thing to do," Hagel said. Any couple that married in a recognition state is considered married for military purposes, regardless of where they now live. Veterans' benefits are more complicated and may take into account whether you currently live in a recognition or non-recognition state. You should note, however,that not all military agencies are complying yet, citing conflicts with state law. Further, the Defense Department may take into account the laws of countries that prohibit same sex marriage when couples are stationed abroad.

When choosing retirement locations, should a same-sex couple consider whether a state recognizes their marriage?

According to Tiffany Palmer, a Philadelphia attorney who specializes in LGBT family law issues, definitely consider retiring to a recognition state. "Traditional retirement states like Florida and Arizona do not recognize same-sex marriage," she says. That means same-sex married couples in those states aren't entitled to many federal benefits.

Married Harvard professors Dorothy Austin, 69, and Diana Eck, 68, agree. Though they both have connections to Montana, they plan to remain in Massachusetts through their lives, in part because that state recognizes their 2004 marriage.

Of course, couples who aren't yet retired should realize that the law is in flux; more states may soon recognize same-sex marriage. 

Edie Windsor, the plaintiff in the DOMA case, challenged the law because inheritance and estate taxes she had to pay after the death of her same-sex spouse wouldn't have been required of an opposite-sex spouse. Does the court's ruling mean no same-sex spouse will have to pay these taxes?

"Same-sex married couples may have a false sense of security after this decision. ... They still need to make sure they have wills, powers of attorney and health care proxies. They still have to prepare their estate plans as if they are unmarried."

Yes and no. Now that Section 3 of DOMA is no longer valid, surviving same-sex spouses who live in recognition states won't have to pay federal estate taxes. Many states have their own inheritance tax schemes, however, and a spouse living in a non-recognition state would likely still have to pay these.

Should same-sex married couples have wills, or will a surviving spouse inherit property even if not a formal heir?

Just as for opposite-sex married couples, it is important for same-sex married couples to plan their estates. In fact, Tiffany Palmer notes, "Same-sex married couples may have a false sense of security after this decision. If they live in a non-recognition state, they may not inherit through intestate succession. They still need to make sure they have wills, powers of attorney and health care proxies. They still have to prepare their estate plans as if they are unmarried."

Still, after the IRS’s August announcement, surviving spouses will be able to claim their deceased partners’ retirement benefits under an employee retirement plan.  

How does all of this apply to same-sex couples who are not married but are in a domestic partnership or civil union?

While some individual private employers and certain states recognize civil unions and domestic partnerships, the federal government does not.  

What other resources offer information about the DOMA ruling and its effects on same-sex marriage?

SAGE (Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders) has a thorough website that addresses same-sex marriage issues for older Americans. The Freedom to Marry website indexes each state's laws and marriage rights for same-sex couples. And the National Senior Citizens Law Center website has up-to-the-minute news and advice.

Lisa T. McElroy is an associate professor of law at the Earle Mack School of Law at Drexel University. She contributes legal commentary to several NPR affiliate stations and national publications.

Published July 15, 2013. Updated September 4, 2013

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