Same-sex married couples have historically been denied many benefits and rights enjoyed by opposite-sex married couples. The U.S. Supreme Court narrowed the gap by striking down a key provision of the federal Defense of Marriage Act (DOMA) in June 2013 and finished the job two years later by ruling on June 26 that same-sex couples must be allowed to marry in all 50 states. Today there's no more "same-sex marriage" — marriage is just marriage.
Marriage offers many benefits but also comes with significant financial and legal consequences. Here are answers to some common questions about how the court's rulings affect same-sex couples.
Q: Do all gay and lesbian couples now have a constitutional right to marry?
A: Yes. In the case of Obergefell v. Hodges, the court said that the right to marriage is a fundamental right vested in the U.S. Constitution. It is therefore guaranteed to all couples (regardless of gender) under the Due Process and Equal Protection clauses of the 14th Amendment.
Q: Does the court's latest ruling mean that the federal government has to recognize same-sex marriage?
A: Yes, as it has since 2013, when the court decided the case of United States v. Windsor. Under the Windsor case ruling, though, the federal government only had to recognize valid marriages from states that had legalized same-sex marriage. After the Obergefell case ruling, the federal government recognizes all marriages — same-sex or opposite-sex — as valid.
Q: If a couple was married before the latest ruling in a state or country that allows same-sex marriage, do other states now have to recognize their marriage?
A: Yes. Before the ruling, if a same-sex couple was married in one state, that marriage might not be recognized in another. Now all states must grant marriage licenses to same-sex couples and recognize same-sex marriages performed in other states.
Q: May same-sex couples file state and federal tax returns as "married"?
A: Yes. In 2013, the IRS announced that all legally married same-sex couples could file as "married," even if they did not live in a recognition state. Now that all states must recognize marriage between same-sex spouses, legally married same-sex spouses no longer have to file state returns as "single," as residents of some states called nonrecognition states had to do before the court's latest ruling.
Q: What about my past tax returns? Can they be amended?
A: Yes, though states might issue guidance about how to do that. Couples who were married in one state but filing state tax forms in a nonrecognition state should now be able to go back and amend those old returns, as long as they do it within any time limit established by the state. Resulting refunds might count when filing future federal returns.
Q: Edie Windsor, the plaintiff in the 2013 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 2015 ruling mean no same-sex spouse will have to pay these taxes?
A: Yes. Now that marriage is not defined by the sex of the individuals involved, all married couples will be treated the same under state and federal tax codes.
Q: 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 plans, every employer will now have to cover all spouses or no spouses at all. So will the federal government.
- 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. Since the ruling on DOMA in 1996, the value of the health insurance hasn't been subject to federal taxes. Now it's no longer taxed at the state level, either.
- Workers who have a flexible spending account (FSA) through their employers have been able to add same-sex spouses since 2013, as an FSA is a federal program.
Q: Any changes to Medicare?
A: Yes. In August 2013, 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 spouses live. Now that all states must recognize same-sex marriages, this benefit will accrue to all married couples, no matter what state they live in.
Q: If a same-sex husband or wife gets sick, can the spouse take time off from work for caregiving?
A: 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 the United States, you and your spouse are entitled to FMLA leave.
Q: How about Social Security spousal benefits?
A: Social Security survivor benefits are available to all couples who have been married for at least nine months. The issue now in many states is how to treat spouses who could not marry before last month. Many couples were together for years, but one partner died before the June ruling. How states that did not previously recognize same-sex marriage will treat these surviving spouses is probably an issue that will be litigated for some time. Still, since 2013, the IRS has allowed surviving same-sex spouses to claim their deceased partners' retirement benefits under an employee retirement plan.
Q: What about military and veterans benefits? Is a same-sex spouse entitled to those?
A: Yes. In 2013, after the decision in the Windsor case, Defense Secretary Chuck Hagel said the Pentagon would 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. The Pentagon did so, but these benefits (particularly veterans benefits) were administered in a complicated way, with some only available to married same-sex couples living in recognition states. Attorney General Loretta Lynch has confirmed that, after June's decision in the Obergefell case, all spouses of active members of the military and veterans will be guaranteed these benefits.
Q: When choosing retirement locations, does a same-sex couple need to think about whether a different state will refuse to recognize their marriage?
A: No. While you might have seen news stories about states that are trying to defy the latest ruling, they will eventually have to comply — the buck stops at the Supreme Court. Still, couples might want to consider whether certain locations are more or less gay-friendly and whether the local culture might change over time.
Q: Should same-sex married couples have wills, or will a surviving spouse have inheritance and next-of-kin rights even if not a formal heir?
A: The June ruling guarantees that all married couples will be treated alike. In fact, says Tiffany Palmer, a partner in the Philadelphia law firm of Jerner and Palmer PC, the ability to make burial and body disposition decisions, administer estates and bring wrongful death actions are significant benefits of marriage. Just as for opposite-sex married couples, however, it is important for same-sex married couples to plan their estates. They still need to make sure they have wills, powers of attorney and health care proxies. In fact, Palmer notes, "Same-sex married couples now have the right to act as next of kin in a medical emergency, for example, but then they may have to worry whether medical personnel will recognize their marriage. We're seeing lots of people in lots of situations [who are] asserting religious grounds. This may be part of the backlash that couples are going to face."
Q: What about parentage presumptions? If my same-sex spouse is the genetic parent of our child but I am not, am I automatically a legal parent?
A: Not necessarily. Palmer strongly recommends that people who are raising nonbiological children as parents should do an adoption. This is true even if the nonbiological parent's name appears on the birth certificate. After the Obergefell ruling, same-sex spouses should be able to do stepparent or second parent adoptions just like opposite-sex couples.
Q: How does all of this apply to same-sex couples who are not married but are in a domestic partnership or civil union?
A: While some individual private employers and certain states recognize civil unions and domestic partnerships, the federal government does not. And now that marriage is the law of the land, Palmer says, "We're seeing a lot of big complications relating to civil unions." Some states are refusing to dissolve civil unions, and uncoupling benefits such as alimony may not be available. Palmer recommends, "If people want to be treated as if they are married, they need to be married." That means that couples who were joined in a civil union ceremony will still need to marry officially.
Q: Why wouldn't a committed same-sex couple want to get married?
A: Michael Adams, executive director of SAGE (Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders) thinks this question is an important one for same-sex and opposite-sex couples alike. "People don't always think about the fact that marriage can have major legal and financial implications," he says. "The marriage tax penalty is a great example." Tiffany Palmer agrees. "Low-income people who receive public benefits need to think about whether they will lose those benefits if they are married."
Q: Where can I find more information?
A: SAGE has a thorough website that addresses same-sex marriage issues for older Americans, including those younger than 65. It also offers free legal services to same-sex spouses older than 50 who have questions about these issues. The Freedom to Marry website also has information, but that organization will be closing down, now that it has achieved its objective of marriage equality. 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 Drexel University Thomas R. Kline School of Law. She contributes legal commentary to several NPR affiliate stations and national publications.
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