Overview of Federal Benefits Granted to Married Couples
There are 1,138 benefits, rights and protections provided on the basis of marital status in Federal law. In June 2013, the Supreme Court’s decision in U.S. v. Windsor struck down part of the Defense of Marriage Act (DOMA), which excluded same-sex married couples from recognition for all federal benefits and programs . Because of this ruling, same-sex married couples across the country have been recognized for federal purposes for the first time. However, the persistent patchwork of state marriage laws continues to stand in the way of many couples fully accessing the federal benefits they have earned including Social Security and Veterans Benefits.
The following is a summary of several categories of federal laws contingent upon marital status.
Social Security provides the sole means of support for some disabled and retired Americans. Every worker contributes to this program through payroll tax, and receives payments upon retirement. Surviving spouses are eligible to receive Social Security payments. A surviving spouse caring for a deceased employee’s minor child is also eligible for an additional support payment. These benefits are only available to married same-sex couples living in states that recognize their marriage. This means that many couples will be denied access to these lifeline benefits simply because of their zip code. For example,, a married lesbian couple living in a non-marriage state would receive drastically unequal benefits despite contributing to the system over their lifetime.
In a revenue ruling issued in 2013, the Treasury Department and the Internal Revenue Service announced that legally married same-sex couples would be recognized for all federal income tax purposes, regardless of where they live. Under this ruling, the IRS will recognize married same-sex couples for the purposes of income tax, estate and gift taxes, and payroll taxes associated with many employee spousal benefits.
However, this ruling does not affect whether the state in which you live recognizes your marriage, meaning you may be recognized as married by the federal government but still considered single by your state government. In some cases, your state may instruct you as a taxpayer to use your federal filing status (e.g. “single,” “married filing jointly,” etc.) when preparing your state tax return. With the IRS’s ruling, this could create conflicting requirements, and navigating them can be complicated and confusing.Couples living in states without marriage recognition will also continue to go unrecognized for purposes of state estate tax and gift tax and transfer tax. Different sex spouses are able to “gift” stocks, bank accounts, or real estate either while living or through a will to a spouse without incurring a state tax. Because same-sex spouses are considered legal strangers, they are required to pay a state tax on these gifts and inheritances as if they were income. Similar burdens accompany transfer of property – which in some cases can include just adding a spouse as a second mortgagee.
Currently, U.S. immigration law recognizes any legal same-sex marriage if it was legal in the place where it was celebrated. Approximately 75% of the one million green cards or immigrant visas issued each year are granted to family members of U.S. citizens and permanent residents. The U.S. Customs and Border Protection also broadened the definition of “members of a family residing in one household” to include long-term same-sex couples and other domestic relationships. This change allows LGBT families traveling abroad to create only one custom declaration form as a family when re-entering the United States.
Employee Benefits for Federal Workers
According to the GAO Report, marital status affects over 270 provisions dealing with current and retired federal employees, members of the Armed Forces, elected officials, and judges. Following the Windsor decision, LGBT federal workers may enroll their same-sex spouse in health insurance through the Federal Employees Health Benefits Program (FEHBP). The Office of Personnel Management has also published a revised regulation regarding enrollment of step and foster children in FEHB coverage. This regulation now clearly allows federal workers to enroll a same-sex partner’s child in the FEHB program.
Continued Health Coverage (COBRA)
Federal law requires employers to give their former employees the opportunity to continue their employer-provided health insurance coverage by paying a premium (the requirement was part of the consolidated Omnibus Budget Reconciliation Act of 1985; hence the common name COBRA). Same-sex spouses, regardless of where they live, now have access to federal COBRA protections.
 Defense of Marriage Act: An Update to Prior Report, General Accounting Office, 2004
 Nothing in this law prevents an employer from extending COBRA benefits to domestic partners.