AFTER DOMA: What It Means For You
The Supreme Court victory in United States v. Windsor striking down the discriminatory federal Defense of Marriage Act (DOMA) affirms that all loving and committed couples who are married deserve equal legal respect and treatment from the federal government. The demise of DOMA marks a turning point in how the United States government treats the relationships of married same-sex couples for federal programs that are linked to being married. At the same time, a turning point is part of a longer journey, not the end of the road. There is much work ahead before same-sex couples living across the nation can enjoy all the same protections as their different-sex counterparts.
These fact-sheets on what the DOMA ruling means for you can help point you toward resources to make sense of it all. (Fact Sheets Updated July 3, 2013)
Ending DOMA lifts up all LGBT people, even if it does not end our work. DOMA was an official federal policy disapproving of gay people and same-sex relationships, often imitated by states and private actors, and imposed a second-class status on our lawful marriages by negating them for all federal purposes. The Court has now affirmed that equal protection guarantees apply to the relationships of LGBT people and has replaced federal disrespect with federal respect for our lawful marriages. This victory will energize our work moving forward so that we can achieve a reality in which every single same-sex couple enjoys full and equal protections under the law, regardless of where they live. (PDF) (PDF en Español)
Bankruptcy is a legal process designed by Congress to give debtors a fresh start from debts they can't afford to pay. It allows them to "discharge," or eliminate, certain debts, and prevents creditors from taking further action to collect on those debts. There are specific rules about which assets you can keep if you go through bankruptcy, and which debts you can discharge. Some kinds of debt are never dischargeable. If you are married, you have different options for bankruptcy filings. Now that the Defense of Marriage Act (DOMA) has been struck down, this guidance provides basic information about bankruptcy filings, how being married matters in bankruptcy proceedings, and what married same-sex couples can expect. Consult with a professional bankruptcy advisor for information and advice about your specific situation. (PDF)
Current and former civilian employees of the federal government may be eligible for an array of protections and benefits for their spouses. The following offers general information about major categories of such protections and benefits. Current and former federal employees and their spouses and surviving spouses should obtain more specific information about their particular circumstances and rights. The federal Office of Personnel Management ("OPM") administers benefit programs for current and former federal civilian employees. OPM's website provides extensive information on these programs and contact information for making further inquiries.
There may be initial uncertainty about how OPM will process some types of applications for benefits and protections for employees' spouses. There may be uncertainty about how the federal government will treat marriages for particular purposes if the state where the employee works and/or lives does not respect the employee's marriage. There also may be uncertainty about the timing of when current and former employees may add their existing spouses to their federal benefits, such as during a regularly scheduled Open Season for new enrollments, or whether OPM will establish special Open Seasons to address the needs of federal employees whose same-sex spouses have only now become eligible for protections after DOMA's fall. Federal employees and their spouses with questions about these issues may contact the OPM. Our organizations will endeavor to provide any updates as we acquire more information. (PDF)
The Family and Medical Leave Act (FMLA) provides important protections for eligible workers. It allows them to take up to 12 weeks of unpaid leave in a 12-month period to care for a spouse with a serious medical condition, or 26 weeks to care for an eligible servicemember spouse with a serious injury or illness. It also allows an employee to take job-protected leave for the birth or adoption of a child or to care for a child who has a serious health condition, regardless of whether the child is biologically related to the employee. At the end of the FMLA leave, workers are entitled to resume their same or an equivalent job.
This guidance addresses the rights that non-federal employees and their same-sex spouses should expect to receive under the FLMA now that the Defense of Marriage Act (DOMA) has been struck down. Rules for federal employees differ slightly. See the guidance section on Federal Employees for information specific to employees of the federal government. You may also have additional rights under state law. For more information, consult with a lawyer who specializes in employment law about rights you may have in your state. (PDF)
Summarized in this document are a few of the many tax issues potentially affecting married same-sex couples now that DOMA has been invalidated. In all likelihood, there will be specific guidance forthcoming from the Internal Revenue Service (IRS) before the next income tax filing deadline for tax year 2013. For personal advice on income tax, gift tax, or estate tax - federal or state - please consult a tax advisor. State income taxes are not addressed in this guidance. This is not legal or tax advice. (PDF in English) (PDF en español)
This guidance addresses the Free Application for Federal Student Aid (FAFSA). The FAFSA is the unified application used to apply for federal student aid such as grants, loans, and work study. It is also used by public and private higher education institutions (like colleges and universities) and some private financial aid providers to determine whether an applicant qualifies for additional aid through his or her school.
Under the federal Defense of Marriage Act (DOMA), applicants with married same-sex parents were instructed to treat their parents as if they were divorced, and were therefore permitted only to list the contributions and income of one parent. Likewise, applicants with same-sex spouses were informed that their marriage was not recognized by the federal government and were not permitted to list their spouse on the application. Now that DOMA has been declared unconstitutional, applicants with same-sex married parents will be required to list the incomes and contributions of both of their parents, and applicants with same-sex spouses will be required to list their spouse as part of their household. (PDF)
These FAQs address some of the questions we anticipate LGBT families with immigration issues will have following a Supreme Court decision striking down the Defense of Marriage Act (DOMA). For general information about U.S. immigration law and how it affects LGBT individuals and their families, see the Immigration Equality website, immigrationequality.org. Immigration is a complicated area of law, with many factors to consider specific to each individual. Consult with a qualified immigration attorney about your specific situation. (PDF in English) (PDF en Español)
Medicaid is a health insurance program for very low-income people who meet certain guidelines. Medicaid also provides insurance coverage for long term care, such as when someone needs nursing home care. Many states have additional specific programs that are also called Medicaid, such as pre-natal care coverage for pregnant women.
Each state has its own Medicaid program that is partially funded by the federal government. Most states call this program "Medicaid," but some states have their own name for their Medicaid program (for example, in California it is called Medi-Cal). Each state has different rules about who can get Medicaid and what is covered, although there are some federal requirements that states must all follow. Even if you qualify in one state, you may not qualify in a different state if you move. The best way to determine the specific eligibility standards used in your state is to visit www.healthcare.gov or www.medicaid.gov. (PDF in English) (PDF En Español)
This guidance addresses the spousal protections of Medicare, the federal health insurance program for adults 65 and older, as well as for certain younger people with disabilities. Several aspects of Medicare are implicated by whether a person is married, including eligibility based on a spouse's work history, premium amounts, and enrollment penalty exemptions related to remaining on a spouse's private health plan. Access to these Medicare protections was blocked or affected by the federal Defense of Marriage Act (DOMA). Now that DOMA has been declared unconstitutional by the United States Supreme Court, this guidance summarizes the benefits, who qualifies, special concerns, and how to apply. (PDF)
Service members receive only approximately 30% of their total compensation in the form of base pay. The remaining 70% of their compensation package comes in the form of allowances, in-kind benefits, and-in the case of retirees-deferred compensation. For service members who are married (or who have another qualified dependent), many of these allowances and benefits are increased, to account for the reality that the service member is providing for a family, instead of an individual. These increases are generous, and reflect the unique strains and challenges placed on a family with a member serving in the military. (PDF)
Although discrimination against married same-sex couples under the Defense of Marriage Act (DOMA) did not bar private employers from offering most spousal employment benefits to employees' same-sex spouses, it subjected same-sex couples to discriminatory tax treatment and other forms of unequal treatment. For example, married same-sex couples had to pay additional income taxes on the value of employer-sponsored health insurance that married different-sex couples did not need to pay, and married same-sex couples who divorced were barred by federal law from obtaining a court order sharing pension benefits as part of a divorce agreement.
Now that DOMA has been struck down, we urge married same-sex couples with employersponsored retirement benefits to immediately review your beneficiary designations and form of benefit elections to ensure that your designations and elections are accurate and complete, and that they reflect your wishes. Your rights may have changed, and waiting may hurt you and your family. (PDF) (PDF en Español)
This guidance addresses Social Security spousal benefits: when one spouse retires; in the event of disability; and when one spouse has passed away. Access to each of these benefits was blocked or affected by the federal Defense of Marriage Act (DOMA). Now that DOMA has been declared unconstitutional by the United States Supreme Court, this guidance summarizes these benefits, who qualifies, special concerns, possible reductions to benefits, how to apply, and how to appeal if your claim is denied. (PDF) (PDF en Español)
The Supplemental Security Income (SSI) program pays a modest cash benefit to people who are at least age 65 and meet financial limits or have severe disabilities and very limited income and resources. (PDF)
Temporary Assistance for Needy Families (TANF) is a federally-funded program run by states that provides limited cash assistance to extremely low-income parents and their children. States may have different names for this program, but it can be called public assistance, temporary assistance, general assistance or cash assistance. This program is extremely limited and provides small amounts of assistance to parents who have little or no income and very few assets for limited periods of time. It also provides some assistance directly for their children. Since the passage of Welfare Reform in the mid-90s, there are severe restrictions on the program, which vary state by state, and many extremely lowincome parents do not qualify.
There is a requirement that adult recipients of TANF generally must work or participate in a welfare-to-work program, although the requirements vary widely from state to state. In many states, being eligible for TANF may also make you eligible for free child care, although child care may not actually be available. (PDF in English) (PDF en Español)
There are two categories of veterans who receive benefits from the Department of Veterans Affairs: qualified non-retired veterans and retirees. Qualified veterans are those who meet eligibility requirements for specific benefits (usually related to time-in-service and discharge characterization). Retirees are those who served at least 20 years in the military and who formally retired from military service. Retirees receive benefits both from the Department of Defense (DOD) (see guidance on Military Spousal Benefits fact sheet for information related to these benefits) and the Department of Veterans Affairs (VA). (PDF)