Same Sex Marriage and Federal Benefits

There are hundreds of federal benefits, rights and protections now available to same sex married couples and their children. These benefits include spousal Social Security eligibility, marital tax breaks, veterans benefits, and many others. However, agencies differ in how they determine whether couple in a same sex marriage is eligible for federal benefits. For more articles, see FindLaw's Domestic Partnerships and Same Sex Marriage sections.

Determining Eligibility for Benefits

There isn't yet uniform treatment of same sex married couples across federal agencies. How a federal agency determines what couples are eligible for depends whether it recognizes any validly performed same sex marriage or looks at the laws in the state where a couple lives to define marriage.

Place of Celebration Rule

Many federal agencies apply a "place of celebration" standard. This means that a federal agency looks at the jurisdiction where the marriage was performed to determine whether the couple is eligible for benefits. If the marriage was performed in a place that recognizes same sex marriage, the couple is eligible for the same benefits as opposite sex married couples. This can be true even if the same sex couple moves to a state which doesn't allow same sex marriage later on.

The place of celebration standard is used to determine eligibility for:

  • Federal tax benefits
  • Immigration status
  • Federal employee benefits

Place of Domicile Rule

Other federal agencies apply a "place of domicile" rule. These agencies only recognize marriages that are valid in a couple's place of residence when they were married or when they file a claim.

The place of domicile rule is used to determine eligibility for:

  • Social Security benefits, including retirement benefits and disability insurance
  • Medicare
  • Leave from work under the Family and Medical Leave Act
  • Veterans Benefits

Some agencies are moving to the more permissive place of celebration rule. Similarly, the federal government is recognizing the eligibility of same sex married couples in states who have had their bans on same sex marriage overturned by federal appeals courts.

Social Security Benefits

A married couple can benefit greatly from expanded social security benefit eligibility. Couples in a same sex marriage may be eligible, depending on where they live, to collect survivor benefits should their spouse die, to collect retirement benefits based on their spouses' Social Security retirement payments, and to receive benefits as a dependant should a spouse become disabled.

A married same sex couple living in a state that recognizes their marriage is eligible to collect the same benefits as an opposite-sex couple. The Social Security Administration has also extended eligibility to certain same sex non-marital relationships, such as civil unions and domestic partnerships. If a couple is already receiving benefits, the agency won't re-examine their eligibility should they move to a state which doesn't recognize their marriage.

Applicants are encouraged to apply for benefits even if they aren't sure if they are eligible. The date that you file can be used to determine when any potential benefits may start.

Tax Benefits

The IRS recognizes a same sex marriage that was validly entered into in any jurisdiction. This means that same sex couples can take advantage of the many federal tax benefits available to married couples, regardless of their state of residence.

As of 2013, same sex spouses must file their federal tax returns using a married filing jointly or married filing separate status. Same sex married couples can benefit from federal estate and gift tax exemptions, may create family partnerships and life estate trusts, and may take advantage of federal estate planning benefits.

Veteran Benefits

Benefits for Veterans include insurance, educational assistance, and loans. VA loans may be available to assist qualifying Veterans or surviving spouses in obtaining a home loan guaranty.

Veteran-related benefits are available to couples whose marriages are recognized either by the state where they lived when they were married or where they lived when they filed a claim. If the Veteran spouse is deceased, the Veteran's last residence and the state of the surviving spouse determine eligibility. However, burial benefits are available to all individuals in committed relationships, including same-sex spouses.

Other Federal Benefits for Couples in a Same Sex Marriage

Couples in a same sex marriage recognized in any state are also eligible for immigration and federal employees' benefits. A U.S. citizen or lawful permanent resident may petition for a family-based immigrant visa or fiancé(e)'s visa for his or her married or engaged foreign partner. The same sex spouse of a federal government employee may be eligible for spousal health care, pension, leave and other benefits.

How an Attorney Can Help

Federal recognition of a same sex marriage can impact everything from your taxes to your burial rights. Consider contacting a qualified attorney for help navigating the federal benefits, rights and protections available to you or if believe you've been wrongly denied benefits.

Next Steps

Contact a qualified family law attorney to make sure your rights are protected.

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