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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

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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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