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Gay couples win more rights

By Jennie L. Phipps ·
Tuesday, July 1, 2014
Posted: 2 pm ET

It has been about a year since the U.S. Supreme Court overturned the Defense of Marriage Act, or DOMA, voiding the federal definition of marriage as an institution pertaining exclusively to a man and a woman.

During the last 12 months, the legal status of people in same-sex marriage has continued to evolve, particularly with regard to the most important social insurance retirement programs -- Social Security, Medicare and the Veteran's Administration.© Jacky Brown/

The ruling quickly cleared the way for same-sex couples to receive these federal benefits when they were married in or living in a state that recognizes same-sex marriage, but the situation remains more restrictive when a couple lives in a state that doesn't recognize same-sex marriage. It means same-sex married couples are still unable to receive Social Security spousal benefits if they were married in one of the states that allows same-sex marriage, but live in a restrictive state.

Last week, Social Security also began processing claims in states that do not recognize same-sex marriages but do recognize other sorts of non-marital legal relationships like civil unions or domestic partnerships.

Attorney Janis Cowhey, tax partner and co-leader of accountancy Marcum's LGBT and non-traditional family practice group, says that committed gay couples living in states where they can't legally be married should promptly tie the knot in a state or the District of Columbia where they can marry. "Go elsewhere, get married and, hopefully, your state will change, but get the clock started."

The reason for speed is that varying wait times are imposed before someone can be eligible for benefits. For example, a couple must be married a year before filing for spousal retirement benefits. To claim survivor benefits, a widow or widower must have been married nine months. For a divorced couple to claim spousal benefits, they must have been married 10 years.

Veteran's benefits are also restricted

Couples that live in states that don't allow gay marriage are currently unable to apply for dependent benefits or survivor pensions from the Department of Veterans Affairs. The National Cemetery Administration is allowing same-sex couples to be buried next to each other in veteran's cemeteries, however.

Most Medicare benefits have become available to same-sex married couples no matter where they live. But if you are one of the relatively few people who don't qualify for Part A hospitalization at no cost because you haven't worked enough quarters under Social Security, you may not qualify based on your spouse's record either because Social Security's rules apply.

If you are facing these and other restrictions, don't be too discouraged, Cowhey advises. She believes these retirement planning problems will eventually be resolved. "The situation just keeps changing, and all these cases keep coming down the legal pipeline, although I don't think a definitive resolution will come in fewer than two years," Cowhey says. "It is going to take a Supreme Court decision or Congress will have to pass a law that says a state has to accept other states' marriages, and things like that take time."

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