Since the Supreme Court issued the Windsor decision in late June declaring Section 3 of DOMA unconstitutional, we have been awaiting clarification on exactly how federal benefits will be applied nationwide to same-sex married couples. If a same-sex married couple lives in a state that recognizes their marriage, i.e., a “recognition state,” then it is fairly clear that most federal benefits and burdens will indeed apply to that couple. However, if a same-sex married couple lives in a state that does not recognize their marriage, i.e., a “non-recognition state,” then the availability of federal benefits and burdens is unclear, and many will not apply. The latest clarification to be released pertains to Social Security claims for same-sex spouses, officially referred to as “Windsor same-sex marriage claims.”
As of now, Social Security claims will be based upon the law of the couple’s state of residence. Thus, only married same-sex couples who live in a state that recognizes their marriages will be eligible to receive the Social Security spousal benefit. The decision appears to be based upon a regulation pertaining to Social Security claims that states a marriage is valid for Social Security purposes “if the courts of the State in which such insured individual is domiciled … would find that such applicant and such insured individual were validly married.” To read the official release from the Social Security Administration, go here.
Other federal benefits and burdens that have been addressed since June include federal employee benefits, military spousal benefits and immigration. Each of those have been applied more generously, based upon the state of celebration rather than of residence. The Office of Personnel Management released a Memorandum explaining that for purposes of federal employee benefits, the government will look to the state of celebration rather than the state of residence to determine whether federal employees can cover their same-sex spouses. In other words, if a federal employee is in a same-sex marriage obtained in a state , that employee can cover his spouse under his federal employee benefits, regardless of where that couple resides. Similarly, the Department of Defense announced that spousal military benefits will be extended to the same-sex spouse of a military member, regardless of whether that couple lives in a recognition or non-recognition state. Finally, Immigration and Naturalization Services now looks only to the state of celebration to determine whether a same-sex couple is entitled to spousal protection for immigration purposes, regardless of where they reside.