In celebration of New Jersey’s recognition of same-sex marriages and the federal government getting back to work, I’d like to delve a little deeper into the federal government’s recognition of gay marriages.
As we learned a couple of weeks ago, the Windsor decision paved the way for same-sex couples to start receiving federal benefits. However, not all government agencies apply federal protections to same-sex marriages in the same way. Whether a couple will receive federal benefits could depend on where you were married, where you live, or both.
Agencies that recognize your marriage based on “Place of Celebration”
Like the Department of Treasury, several other agencies will recognize your marriage based on where you got married, not where you reside. Therefore, you can now go get married in New Jersey and travel back to Virginia and still receive federal recognition from the following:
Department of Defense (DOD): Same-sex military spouses can now receive all benefits. It will also allow up to 7 or 10 days of leave for couples that need to travel to get married.
Department of Homeland Security: The U.S. Citizenship and Immigration Services permits a U.S. citizen or lawful permanent resident in a valid same-sex marriage to a foreign national to petition for an immigration visa for his/her spouse.
Officer of Personal Management (OPM): Extends spousal benefits of federal employees to same-sex couples. Benefits include health, life, dental, vision, and long-term care insurance, as well as retirement benefits and flexible spending accounts.
Agencies that recognize your marriage based on “Place of Residence”
These agencies still recognize your marriage, as long as you live in a place that allows same-sex marriages. In other words, Ben and I would have to move to Iowa, get married, and stay there to receive the following benefits:
Department of Labor: Specifically, to how “spouse” applies to the Family and Medical Leave Act (FMLA), which allows eligible workers 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 service-member spouse with a serious injury or illness. At the end of the leave, workers can resume their same or equivalent job. This rule applies to public employers and private sector employers with 50 or more employees.
Department of Veterans Affairs: Provides spousal benefits to veterans, and in some instances active-duty service members and reservists.
Medicare: The federal health insurance program that covers senior citizens and those with certain disabilities. Most people become eligible when they turn 65, but in certain situations having a spouse can alter they way you access these benefits.
Social Security: Social Security law gives benefits to an individual’s spouse in certain situations. For example, a non-earning or low-earning spouse can collect an amount equal to 50% of the spouse’s Social Security benefit. Also, when a worker qualifies for Social Security disability benefits, the spouse may be eligible for a monthly benefit of up to 50% of the disabled worker’s benefit. Lastly, after a spouse’s death, a surviving spouse can collect his or her own social security payment or collect the full payment of the deceased spouse.
Supplemental Security Income: This program pays a cash benefit to people who are at least age 65 and meet financial limits or have severe disabilities and very limited income. Those married couples living together where both spouses are at least 65 and meet the Social Security Act disability standard must apply for SSI as a couple. (This actually makes it harder to meet the income limits.) The spouse’s income is also considered, even if only one spouse applies.
The Mixed Bag
The Mixed Bag
Some provisions in federal law rely on state law for enforcement. So these rules get a little confusing because of the disparate state rules.
Medicaid: Medicaid provides health coverage to low-income people who are elderly or have a disability. It also applies to children, pregnant women, and a parent or relative caretaker of a child. Individual states run their own Medicaid program, but the federal government partially funds each state’s plan. Beginning in 2014 under the Affordable Care Act, some states will grant Medicaid to all very low-income people, regardless of whether they have a child, a disability, or are elderly.
Qualification will depend on federal Modified Adjusted gross income (“MAGI”). You calculate this figure based on your federal income tax return. Consequently, this affects those legally same-sex couples who now must file federal income tax returns regardless of their state of residence. Same-sex couples in a civil union or registered domestic partnership only have to consider one income, even if they live together.
In addition, each state still follows its own rules in implementing its Medicaid program. As such, an individual’s state of residence will determine the degree to which a same-sex spouse benefits from spousal impoverishment protections.
Know your rights
I know these rules make things a bit confusing. And trying to figure out what benefits apply when will continue to baffle most people until we have marriage equality everywhere. (I believe that day is coming.) Until that day, I can’t stress enough that you must know your rights.