Fact Sheet

After DOMA | Descarga PDF en español |Leer en español

This series of fact sheets produced together by:

UPDATE (Nov. 15, 2013): On Sept. 18, 2013, the Department of Labor issued Technical Release No. 2013-04, "Guidance to Employee Benefit Plans on the Definition of 'Spouse' and 'Marriage' under ERISA and the Supreme Court's Decision in United States v. Windsor." The Department of Labor has issued additional guidance post-Windsor on the Family and Medical Leave Act: Fact Sheet #28F: "Qualifying Reasons for Leave under the Family and Medical Leave Act."

Keep in Mind:

The Supreme Court’s ruling in Windsor applies only to the federal government. It does not change discriminatory state laws excluding same-sex couples from state-conferred marriage rights.
Federal agencies—large bureaucracies—may need and take some time to change forms, implement procedures, train personnel, and efficiently incorporate same-sex couples into the spousal-based system.
Until same-sex couples can marry in every state in the nation, there will be uncertainty about the extent to which same-sex spouses will receive federal marital-based protections nationwide. For federal programs that assess marital status based on the law of a state that does not respect marriages of same-sex couples, those state laws will likely pose obstacles for legally married couples and surviving spouses in accessing federal protections and responsibilities.
Securing fair access to federal protections that come with marriage for all same-sex couples in the nation will take some time and work. In some situations, it may require Congressional action or formal rule-making by agencies.
Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for people who are on certain public benefits, as getting married may jeopardize your eligibility without providing you the full measure of protections other married couples enjoy. In addition, couples who travel to another place to marry and then return to live in a state that does not respect their marriage may be unfairly unable to obtain a divorce, which can lead to serious negative legal and financial consequences. People must make careful decisions when and where to marry, even as we work together to end this injustice.
We are committed to winning universal access to federal marital protections for married same-sex couples through ongoing public policy advocacy, and, where necessary, strategic litigation. Contact our organizations if you have questions, for updates and to learn more about what you can do to achieve full equality for those who are LGBT.

This Guidance is intended to provide general information regarding major areas of federal marriage-based rights and protections based on how the various federal agencies have administered federal benefits. It should not be construed as legal advice or a legal opinion on any specific facts or circumstances, and does not create an attorney-client relationship. Past practice is no guarantee of future developments. While laws and legal procedure are subject to frequent change and differing interpretations in the ordinary course, this is even more true now as the federal government dismantles DOMA and extends federal protections to same-sex couples. None of the organizations publishing this information can ensure the information is current or be responsible for any use to which it is put.

No tax advice is intended, and nothing therein should be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code.

Contact a qualified attorney in your state for legal advice about your particular situation.

Private Employment Issues and Benefits

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 employer-sponsored 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.

This Guidance addresses some of the marriage-related issues regarding employer-sponsored retirement plans and health insurance benefits that are regulated by federal law.

For more information about federal regulation of employee benefits, see:

http://www.dol.gov/ebsa/faqs/faq_compliance_pension.html

www.aging.senate.gov/crs/pension7.pdf

1) What rights does federal law provide to married employees with respect to employer-sponsored health insurance benefits?

2) What rights does federal law provide to married employees with respect to private retirement benefits?

3) Which marriages will be considered valid by the federal government for benefits purposes?

4) Which employers are subject to the federal laws that regulate pensions and other employment benefits?

5) Does my employer have to change its health or pension plan before my spouse will be entitled to these protections, or will my spouse automatically be eligible?

6) What should I do I am told that my plan won’t cover my spouse?

7) If my employer decides to start allowing spouses of the same sex to enroll in the health plan, when can I enroll my spouse? Will I need to wait until open enrollment?

8) What if I got divorced while DOMA was still in effect, and I was unable to get an order sharing my retirement savings with my ex-spouse as part of my divorce?

9) What if my spouse retired or died while DOMA was in effect, and I was told I was not entitled to a spousal survivor annuity?

1) What rights does federal law provide to married employees with respect to employer-sponsored health insurance benefits?

Currently, federal law has not been definitively interpreted to require an employer to offer insurance to a spouse of the same sex, even if the employer offers coverage to different-sex spouses. But, many employers do so already, and your state may have additional requirements that insurance offered to different-sex spouses must be available to same-sex spouses. (If your employee-health plan is self-insured, rather than a true insurance contract, it will not be subject to state nondiscrimination laws – this is because the federal law “pre-empts”, or overrides, those state laws, while still allowing states to regulate insurance. You can ask your human resources department whether your plan is self-insured or an insurance contract.) To find out more about your rights, you can also contact one of the legal organizations below.

Assuming your health plan offers your spouse coverage and you are considered validly-married by the federal government, you and your spouse should be eligible for the following additional federal protections:

The value of your spouse’s health insurance will not be treated as taxable income to you (the employee) or to your spouse.
Your spouse and children have the right to remain in your health plan if you lose your job or your hours are reduced, or if you divorce or separate. This is known as “COBRA coverage” or “COBRA continuation coverage.” While your employer has to allow you and your children and spouse to remain insured, you can be required to pay the full cost of those benefits. (While nothing precludes a plan from providing continuation coverage to persons who are not qualified beneficiaries if they create appropriate plans, including domestic partners, such coverage is not required by federal law.)
While most health plans only let you enroll at specific times, marriage or divorce are “qualifying events” that will let you enroll or un-enroll outside those specific time periods.

In addition to these protections, you and your spouse may have other rights under state law.

2) What rights does federal law provide to married employees with respect to private retirement benefits?

If you are considered validly married by the federal government and eligible for a pension or other employer-sponsored retirement plan, federal law has specific requirements that your plan must follow in order to maintain tax-qualified status:

The default form of benefit for a defined benefit pension plan (i.e., a traditional pension that guarantees a specific monthly payment at retirement) must be a joint and survivor spousal annuity (QJSA). This means that a portion of your pension will continue to be paid to your spouse if you die before your spouse does, although you and your spouse together can decide to waive this right and name someone else as the beneficiary.
If you die before reaching retirement age, your spouse is entitled to a pre-retirement survivor annuity (QPSA) from a defined benefit pension plan.
Your spouse has to give written consent if you want to name anyone else as your beneficiary for your retirement plan.
Being married entitles your spouse to greater options in taking distributions (regarding the timing of payments, and the amount you can receive) from your retirement plan, and to preferential tax treatment of those distributions.
Your plan may also allow you to take money out of a retirement account without tax penalty to pay expenses like medical costs, tuition, or funeral expenses for your spouse.
Finally, if you get divorced, the courts can ensure that your ex-spouse receives a portion of your retirement plan assets as part of the divorce agreement. This is called a Qualified Domestic Relations Order, or QDRO.

3) Which marriages will be considered valid by the federal government for benefits purposes?

If you live in a state that respects your marriage: The federal government will consider your marriage valid, and you have a right to all the protections that are required to be offered to spouses under federal law.

If you live in a state that doesn’t respect your marriage: Because some of these programs are regulated by the Internal Revenue Service and the Department of Labor, it may take some time to obtain guidance from the relevant agencies as to which marriages will be treated as valid by the federal government. There may be some initial uncertainty for a period of time because the IRS ordinarily follows the law of the state of domicile (primary residence) in determining whether to recognize a marriage. However, there is no statute or regulation compelling this approach, and the IRS has recognized “common law” marriages for tax purposes as long as they were valid in the state where they were entered into. In our mobile society, it would make more sense for the federal government to recognize all marriages that were valid where entered. If you encounter problems or have questions, contact one of the legal organizations listed below.

4) Which employers are subject to the federal laws that regulate pensions and other employment benefits?

These federal laws generally apply to employers that offer retirement and health benefits, sometimes referred to as “ERISA plans.” Some of these requirements, particularly the retirement plan obligations, do not apply to federal, state, or local government employers, or to churches or religious associations or conventions of churches (although some religious employers choose to be governed by these federal laws). Health plans maintained by private-sector employers with 20 or more employees, employee organizations, or state or local governments are covered by COBRA.

5) Does my employer have to change its health or pension plan before my spouse will be entitled to these protections, or will my spouse automatically be eligible?

It depends on what your plan documents say, and may depend on which kind of benefit are at issue. If your plan, like most, simply refers to “spouses,” your employer doesn’t necessarily need to change anything in order to include spouses of the same sex. If your plan states that “spouse” means only different-sex couples, or is determined by reference to state law, your plan documents likely need to be revised to comply with federal law. But, you and your spouse are entitled to protections in the meantime even if your plan doesn’t change its language. (Again, it’s important to remember that for health insurance, if your plan is self-insured, while it can offer benefits, it isn’t currently required to do so.)

Talk with someone in your human resources department. If you still have questions, contact one of the organizations listed below, or a lawyer who specializes in employee benefits.

6) What should I do I am told that my plan won’t cover my spouse?

If your employer or your retirement or health plan tells you that your spouse will not be treated as different-sex spouses are, it may be important to act quickly to preserve your rights. Sometimes the issue can be cleared up with a conversation, but do not lose sight of the specific time limits to appeal determinations made by your plan. Contact one of the organizations listed below, or a lawyer who specializes in employee benefits.

7) If my employer decides to start allowing spouses of the same sex to enroll in the health plan, when can I enroll my spouse? Will I need to wait until open enrollment?

It depends. Generally, “marriage” is a qualifying event for adding a spouse to the health plan. Even if you may have already been married for several years before DOMA was struck down, you should ask your employer if this change in federal law is a qualifying event. It’s also possible that some plans will wait until the next open enrollment season in advance of a new plan year to allow employees to make changes to their benefits to add spouses who had been unable to obtain coverage previously.

8) What if I got divorced while DOMA was still in effect, and I was unable to get an order sharing my retirement savings with my ex-spouse as part of my divorce?

Federal law has strong protections for your retirement savings, and generally prevents your plan from paying benefits to anyone but you or your beneficiary. One exception allows you to share those savings with your ex-spouse as part of a divorce agreement. This is called a Qualified Domestic Relations Order, or QDRO. If you were unable to obtain a QDRO when you divorced and now want to seek one, consult a qualified attorney about whether it is possible to re-open the divorce proceeding.

9) What if my spouse retired or died while DOMA was in effect, and I was told I was not entitled to a spousal survivor annuity?

Talk with your plan administrator or an employee benefits lawyer. It’s possible, though not certain, that you still might be able to receive a survivor annuity (QJSA or QPSA). If you did, that might mean that you would have to re-pay some of the money your spouse had already received from the plan.

Contact:

This series of fact sheets produced together by:

1) Who is a military spouse?

UPDATE (Nov. 15, 2013): The Department of Defense has issued information on implementation of the Windsor decision for same-sex military spouses.

Keep in Mind:

The Supreme Court’s ruling in Windsor applies only to the federal government. It does not change discriminatory state laws excluding same-sex couples from state-conferred marriage rights.
Federal agencies—large bureaucracies—may need and take some time to change forms, implement procedures, train personnel, and efficiently incorporate same-sex couples into the spousal-based system.
Until same-sex couples can marry in every state in the nation, there will be uncertainty about the extent to which same-sex spouses will receive federal marital-based protections nationwide. For federal programs that assess marital status based on the law of a state that does not respect marriages of same-sex couples, those state laws will likely pose obstacles for legally married couples and surviving spouses in accessing federal protections and responsibilities.
Securing fair access to federal protections that come with marriage for all same-sex couples in the nation will take some time and work. In some situations, it may require Congressional action or formal rule-making by agencies.
Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for people who are on certain public benefits, as getting married may jeopardize your eligibility without providing you the full measure of protections other married couples enjoy. In addition, couples who travel to another place to marry and then return to live in a state that does not respect their marriage may be unfairly unable to obtain a divorce, which can lead to serious negative legal and financial consequences. People must make careful decisions when and where to marry, even as we work together to end this injustice.
We are committed to winning universal access to federal marital protections for married same-sex couples through ongoing public policy advocacy, and, where necessary, strategic litigation. Contact our organizations if you have questions, for updates and to learn more about what you can do to achieve full equality for those who are LGBT.

This Guidance is intended to provide general information regarding major areas of federal marriage-based rights and protections based on how the various federal agencies have administered federal benefits.It should not be construed as legal advice or a legal opinion on any specific facts or circumstances, and does not create an attorney-client relationship. Past practice is no guarantee of future developments. While laws and legal procedure are subject to frequent change and differing interpretations in the ordinary course, this is even more true now as the federal government dismantles DOMA and extends federal protections to same-sex couples. None of the organizations publishing this information can ensure the information is current or be responsible for any use to which it is put.

No tax advice is intended, and nothing therein should be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code.

Contact a qualified attorney in your state for legal advice about your particular situation.

Military Spousal Benefits

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.

2) Which Marriages does the Military Consider Valid?

3) What Happens if I Move from a Marriage State to a Non-marriage State (or Overseas)?

4) How do I Register for Spousal Benefits?

5) What is the Duty to Report Marriages?

6) What are the Benefits my Spouse can get?

7) What Action do I Need to Take?

8) What does the Court's Ruling Mean for the Military Domestic Partnership Benefits Extension?

1) Who is a military spouse?

For the active military, reserves, and National Guards, by statute a “spouse” is “a husband or wife as the case may be.” Then-Secretary of Defense Panetta said in a memo on February 11, 2013, that:

In the event that the Defense of Marriage Act is no longer applicable to the Department of Defense, it will be the policy of the Department to construe the words “spouse” and “marriage” without regard to sexual orientation, and married couples, irrespective of sexual orientation, and their dependents, will be granted full military benefits.

http://www.defense.gov/news/Same-SexBenefitsMemo.pdf

With the Supreme Court striking down DOMA as unconstitutional, it no longer applies to the Department of Defense (DOD) and we can expect the DOD to issue a formal statement that it will construe the statute definition of spouse to be inclusive, as laid out in Secretary Panetta’s statement.

2) Which Marriages does the Military Consider Valid?

Generally, the military will consider a marriage valid if it was valid in the state where the marriage took place. A state-issued marriage certificate is normally all the evidence necessary to demonstrate that the marriage was considered valid by the state.

Marriages entered into in foreign countries to foreign nationals generally must be approved by the military service beforehand. If such a marriage is not approved beforehand, the service member must obtain a “recognition of marriage” from the military service. In general, no benefits will result from marriage entered into in a foreign country to a foreign national unless it was pre-approved by the service or ratified afterwards.

While a marriage may be valid according to state law, the military does not provide benefits—or will seek restitution for benefits already paid—for “sham” marriages entered into solely for the purposes of obtaining benefits. The military has aggressively prosecuted such cases in several instances.

3) What Happens if I Move from a Marriage State to a Non-marriage State (or Overseas)?

Because the military determines a marriage to be valid based on the law of the state where the marriage took place, it should not matter what state you lived in when you married, what state you move to after you marry, or where you are stationed around the world. Once your spouse is recognized by the military as your spouse, the laws of the state in which you live no longer play a role in whether you remain eligible for spousal benefits from the military.

4) How do I Register for Spousal Benefits?

Eligibility for all military spousal benefits flows from a spouse’s valid enrollment in the Defense Enrollment Eligibility Reporting System (DEERS). To add a spouse to DEERS, the service member must go to an ID Card office or DEERS office and present a valid marriage certificate, or in the case of a common law marriage, a determination from the Staff Judge Advocate (SJA) that the common law marriage is valid under state law.

For a list of documents required to add dependents to DEERS, please visit: http://www.dmdc.osd.mil/rsl/html/RequiredDocuments.html

5) What is the Duty to Report Marriages?

Service members have a duty to report changes in their dependent status within 30 days. Under DOMA, marriages to a person of the same-sex did not have to be reported because the military could not recognize these marriages. Now that DOMA has been struck down, service members who are legally married under any states’ laws must report the marriage. It is unclear when the 30-day deadline for reporting will begin, but it is best to report as soon as possible.

6)What are the Benefits my Spouse can get?

Once a spouse is enrolled in DEERS, he or she is eligible for a whole host of benefits. The most important benefits to most service members and their spouses are:

Spousal Identification Card
TRICARE medical insurance coverage
Dependent-rate housing allowance
Family separation allowance
Ability to move off base to live with a spouse
Command-sponsored visas
Access to military installations and facilities, including: base; commissaries; exchanges; Morale, Welfare and Recreation (MWR) centers; Family Center programs
Joint Duty Assignments
Access to legal assistance

While it does not flow directly from DEERS enrollment, the spouses of service members may also invoke the protections of the Servicemembers Civil Relief Act (SCRA), which provides certain protections from civil actions against service members who are called to Active Duty. For more information on the SCRA, visit https://www.dmdc.osd.mil/appj/scra/welcome.xhtml.

7)What Action do I Need to Take?

Couples who are married, regardless of whether you currently live in a state that recognizes your marriage, should proceed immediately to any DEERS office or ID Card office and report that you are married. You will need a copy of your marriage certificate.

Couples who are in state registered domestic partnerships or state civil unions, or couples who have no state legal status, have no mandatory requirement to report those relationships to the military.

8) What does the Court's Ruling Mean for the Military Domestic Partnership Benefits Extension?

On February 22, 2013, then-Secretary of Defense Panetta announced that certain benefits not blocked by DOMA would be made available to the same-sex domestic partners of service members. The benefits extension is scheduled to take effect between August 31, 2013 and October 1, 2013, with some news reports identifying the effective date as September 1, 2013. Any same-sex couple who meets the eligibility requirements can register as a domestic partner, regardless of whether the couple has any state-recognized relationship status. See http://www.defense.gov/news/Same-SexBenefitsMemo.pdf.

Recognition of a marriage provides many more benefits than the domestic partnership status established by DOD. A married couple will receive all the benefits that a domestic partnership couple would receive, but the domestic partnership couple will receive far fewer benefits than the married couple.

In the memorandum announcing the domestic partnership benefits extension, Secretary Panetta said “The benefits changes directed by this memorandum will be re-assessed” when DOMA no longer applies to the DOD “to determine whether other changes are needed or appropriate, to include whether unmarried same-sex domestic partnerships should be a basis for eligibility for benefits in the future.”

Now that DOMA has been struck down, it remains to be seen whether DOD will continue to implement the domestic partnership benefits extension, or require all benefits to be conferred through state-recognized marital status.

Contact:

OutServe-SLDN

Who qualifies for Medicaid?

This series of fact sheets produced together by:

After DOMA | Download English PDF | Descarga PDF en español | Leer en español

UPDATE (Nov. 15, 2013): On September 17, 2013, the Department of Health & Human Services issued SHO # 13-006, guidance for State Health Officials and Medicaid Directors on implications of the Windsor ruling for Medicaid and the Children's Health Program (CHIP). For more information, click here.

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.

Keep in Mind:

The Supreme Court’s ruling in Windsor applies only to the federal government. It does not change discriminatory state laws excluding same-sex couples from state-conferred marriage rights.
Federal agencies—large bureaucracies—may need and take some time to change forms, implement procedures, train personnel, and efficiently incorporate same-sex couples into the spousal-based system.
Until same-sex couples can marry in every state in the nation, there will be uncertainty about the extent to which same-sex spouses will receive federal marital-based protections nationwide. For federal programs that assess marital status based on the law of a state that does not respect marriages of same-sex couples, those state laws will likely pose obstacles for legally married couples and surviving spouses in accessing federal protections and responsibilities.
Securing fair access to federal protections that come with marriage for all same-sex couples in the nation will take some time and work. In some situations, it may require Congressional action or formal rule-making by agencies.
Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for people who are on certain public benefits, as getting married may jeopardize your eligibility without providing you the full measure of protections other married couples enjoy. In addition, couples who travel to another place to marry and then return to live in a state that does not respect their marriage may be unfairly unable to obtain a divorce, which can lead to serious negative legal and financial consequences. People must make careful decisions when and where to marry, even as we work together to end this injustice.
We are committed to winning universal access to federal marital protections for married same-sex couples through ongoing public policy advocacy, and, where necessary, strategic litigation. Contact our organizations if you have questions, for updates and to learn more about what you can do to achieve full equality for those who are LGBT.

No tax advice is intended, and nothing therein should be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code.

Contact a qualified attorney in your state for legal advice about your particular situation.

Medicaid

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.

Who will be recognized as married for Medicaid purposes?

How does being married impact my Medicaid eligibility

I have been told that I have to identify the biological father of my child to receive Medicaid. Is this true?

How can I apply for Medicaid?

1) Who qualifies for Medicaid?

Medicaid is run and designed by each state, so each state has different rules about who qualifies and what benefits you can get. In some states, very few people qualify for Medicaid, and the benefits are very limited. In general, Medicaid is currently available to very low-income people who are a child, pregnant, a parent or relative caretaker of a child; have a disability; or are elderly. Because eligibility may depend on being recognized as a parent, in states where same-sex parents are not recognized under the law, non-biological parents may not be able to qualify for Medicaid.

Medicaid will change drastically in many states in 2014. Beginning in 2014, many states will make Medicaid available to all very low-income people regardless of whether they have a child, a disability, or are elderly. This change is required under the Affordable Care Act (also called Obamacare), but under the recent U.S. Supreme Court ruling about the Affordable Care Act, not every state has to expand Medicaid under this law. In states that choose not to expand Medicaid, the old eligibility rules will still apply. Even in states that expand Medicaid, there may be some smaller programs that are called “Medicaid” that will not change under this law.

Beginning in 2014, all states will change how they calculate financial eligibility for Medicaid – although some Medicaid programs will still follow the old rules. These new financial eligibility rules will be based on your Modified Adjusted Gross Income (MAGI), which is calculated using your federal income tax return. If you file federal taxes as married filing jointly, both of your incomes will be considered in determining your Medicaid eligibility under the MAGI rules. See guidance on Federal Taxes for more information.

2) Who will be recognized as married for Medicaid purposes?

Because the federal government pays for part of Medicaid, there are federal rules that restrict how states run this program. Many states that have marriage equality did not treat same-sex married couples as married for many Medicaid programs, although several states have already been recognizing marriages between same-sex spouses for Medicaid purposes.

If your state recognizes your marriage: Now that Section 3 of the federal Defense of Marriage Act (DOMA) has been overturned, every state that recognizes marriages between same-sex couples will recognize their marriages for all Medicaid purposes.
If you are in a civil union or registered domestic partnership and your state recognizes your relationship: You may be treated as married for Medicaid purposes. We do not yet know if you will file federal taxes jointly with your partner. But if you do file taxes jointly, both of your incomes will be considered for most Medicaid income eligibility calculations, which could make you ineligible. See guidance on Federal Taxes for more information.
If you live in a state that doesn’t recognize your relationship: You will probably not be recognized as married for Medicaid purposes, although some states may decide to provide hardship protections to a partner of a person in long term care.

The federal government has also allowed states to provide the same protections given to the spouses of people who are receiving long term care to any domestic partner, regardless of whether they are in a formally recognized relationship. These protections can be very significant – they can allow the partner who is not in long term care to remain in the family home and allow the partner to keep more joint assets. Most states have not yet decided whether to provide these protections to domestic partners.

3) How does being married impact my Medicaid eligibility?

Because this program is limited to very low-income people, who is considered to be a part of your family for purposes of determining your family income and assets impacts your eligibility for Medicaid. As explained above, how your income is calculated for most Medicaid programs will change in 2014.

For people receiving long term care coverage through Medicaid (such as coverage for nursing home care), Medicaid provides protections for the healthy spouse’s assets.

Caution: For many couples, being married is not beneficial for Medicaid purposes and can result in losing eligibility for benefits. But, being married can be beneficial if one spouse is receiving long-term care coverage through Medicaid. People receiving Medicaid should speak to an attorney if possible about their benefits before deciding to marry.

4) I have been told that I have to identify the biological father of my child to receive Medicaid. Is this true?

Federal law currently requires people who receive Medicaid because they are parents to “cooperate” in efforts to identify the biological father of their child – the federal law requiring this is written in gendered terms and assumes that a biological father must be identified. Parents who have conceived using a known sperm donor may be required to identify their sperm donor as the father of their child in order to receive benefits. If you live in a state with laws that say a sperm donor is not a parent (and you followed those laws) or if a court has already ruled that your donor is not a parent, you should not have to identify him as a father – although you may have to push the agency to recognize this. But, if your donor could be a legal parent under your state’s laws, you may be required to identify him as a legal father. Identifying your sperm donor as a father can have severe results – it can mean that he will be recognized as the legal second parent of your child for all purposes under the law, including the ability to seek custody or visitation, and can prevent a non-biological parent who is raising the child from being recognized. If you are facing this situation, please contact one of the legal groups listed at the end of this publication for more information.

5) How can I apply for Medicaid?

The application process will be different in each state. Currently, in most places, there will be a county office where you can apply, or you may be able to apply online. Beginning in 2014, you will be able to apply online and determine your eligibility through the Health Insurance Marketplace. For more information, and to see if you are eligible for Medicaid coverage in your state, please visit www.healthcare.gov.

Contact:

1) Immigration attorneys told me in the past not to marry my partner because this will ruin my chances of getting a visa. Now that DOMA has been struck down, should I seek advice about whether this may have changed?

This series of fact sheets produced together by:

After DOMA | Download English PDF | Descarga PDF en españo | Leer en español

Update as of July 1, 2013: Further guidance by the Department of Homeland Security.

Keep in Mind:

The Supreme Court’s ruling in Windsor applies only to the federal government. It does not change discriminatory state laws excluding same-sex couples from state-conferred marriage rights.
Federal agencies—large bureaucracies—may need and take some time to change forms, implement procedures, train personnel, and efficiently incorporate same-sex couples into the spousal-based system.
Until same-sex couples can marry in every state in the nation, there will be uncertainty about the extent to which same-sex spouses will receive federal marital-based protections nationwide. For federal programs that assess marital status based on the law of a state that does not respect marriages of same-sex couples, those state laws will likely pose obstacles for legally married couples and surviving spouses in accessing federal protections and responsibilities.
Securing fair access to federal protections that come with marriage for all same-sex couples in the nation will take some time and work. In some situations, it may require Congressional action or formal rule-making by agencies.
Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for people who are on certain public benefits, as getting married may jeopardize your eligibility without providing you the full measure of protections other married couples enjoy. In addition, couples who travel to another place to marry and then return to live in a state that does not respect their marriage may be unfairly unable to obtain a divorce, which can lead to serious negative legal and financial consequences. People must make careful decisions when and where to marry, even as we work together to end this injustice.
We are committed to winning universal access to federal marital protections for married same-sex couples through ongoing public policy advocacy, and, where necessary, strategic litigation. Contact our organizations if you have questions, for updates and to learn more about what you can do to achieve full equality for those who are LGBT.

No tax advice is intended, and nothing therein should be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code.

Contact a qualified attorney in your state for legal advice about your particular situation.

Immigration

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, http://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.

2) Now that DOMA has been held unconstitutional, if I marry my partner can I sponsor her for a green card?

3) We are both in the United States

4) For Immigrants Who Are In Lawful Immigration Status

5) For Immigrants Who Are Out of Status

6) I am in the United States but my Partner is Abroad

7) My Partner and I are in Exile – Living Together Outside of the United States

8) Other Issues

9) Will Things We Said or Did In the Past Affect our Future Application?

10) Information for Dual Foreign National Couples

1) Immigration attorneys told me in the past not to marry my partner because this will ruin my chances of getting a visa. Now that DOMA has been struck down, should I seek advice about whether this may have changed?

For those seeking permanent resident status in the United States, yes, that advice may change now. A reason attorneys have advised foreign partners of U.S. citizens not to marry is that for many of the most common types of non-immigrant visas, such as tourist visas (B1/B2) and student visas (F1), the foreign national entering the U.S. must demonstrate to the U.S. immigration official that he or she does not have the intent to remain in the U.S. permanently. Since there now is a legal means to apply for permanent immigrant status in the U.S. based on a marital relationship, in many cases it will make sense to go ahead and marry and file for permanent benefits.

2) Now that DOMA has been held unconstitutional, if I marry my partner can I sponsor her for a green card?

In many cases, yes. Options for families will vary from case to case, based upon a number of factors, including: whether the partners are living together or in different countries; whether the partners are living together in the United States or abroad; whether the partners have married; whether the partners can marry; and for families together in the United States, whether the non-U.S. citizen partner arrived here after having been inspected by an immigration officer or whether the partner entered without inspection. Same-sex couples will also have to meet the general criteria for marriage-based immigration. For general information about the procedure to apply for marriage-based immigration petitions on behalf of foreign spouses who are inside the U.S., see Immigration Equality’s adjustment of status page, and for foreign spouses who are outside the U.S., see Immigration Equality’s consular processing page.

The following outlines some common circumstances for same-sex binational couples.

3) We are Both in the United States

My spouse and I married in a marriage equality state and live in a state that recognizes our marriage. Can I file for her?

Yes, your application should be treated exactly as the application of a different-sex couple.

My spouse and I married in a marriage equality state but live in a state that does not recognize our marriage. Can I still file for him?

U.S. Citizenship and Immigration Services (USCIS) focuses on the place where the marriage was entered (the place of celebration), not the place where one spouse or both spouses live. As long as the marriage was validly entered into under the laws of the state or country of celebration, it should not matter where you currently reside.

If my partner and I entered into a civil union (for example in New Jersey) or a Domestic Partnership (for example in California) with all the rights of marriage, but are not actually married, can I sponsor her for a green card?

The answer to this is not entirely clear, and we hope to have guidance on this soon. If it is possible for you and your partner to marry even if you have to travel to a different state to do so, you may be better off marrying because you could then feel more secure in filing right away without having to wait for further guidance.

4) Other Considerations:

For Immigrants Who Are In Lawful Immigration Status

I am in the U.S. legally on a non-immigrant visa that allows me to have the intention to stay in the U.S. (for example an H1B or L1 visa). I am married to my spouse; can she file a green card application for me?

Yes, as long as the two of you are lawfully married, and you meet the other general immigration marriage requirements, you should be able to apply to adjust status to lawful permanent resident and process your paperwork from within the U.S. See here.

I am in the United States on a non-immigrant visa (for example a tourist or student visa) that required me to demonstrate that I did not have the intent to immigrate to the U.S. Is it a problem for me to marry my partner and have her file a marriage-based green card application?

Maybe. As with many areas of immigration law, this is an area that will involve a fact-intensive inquiry by the USCIS. It is considered acceptable to enter the U.S. with the intention to remain here temporarily and then have your intent change as circumstances in your life change. For example, a university student might meet someone after attending school here and decide to marry that person months or years after entering the U.S. on a student visa. On the other hand, if a person enters the U.S. on a tourist visa, marries, and applies for a green card within three weeks of entering the U.S., USCIS may conclude that the individual misrepresented her lack of immigrant intent to the immigration official at the airport and this could lead to a denial of the application. This is the law for different-sex couples, and we expect it will apply identically to same-sex couples.

5)For Immigrants Who Are Out of Status

I entered the U.S. with a visa several years ago and never left. Can my U.S. citizen spouse file a green card application for me even though I am now here without legal status?

Yes. While the general rule under U.S. immigration law is that you cannot change your status from unlawful to lawful from within the United States, one very important exception to that rule is for spouses of U.S. citizens. As long as you entered the U.S. with inspection by a U.S. immigration officer, you can still file for a green card (adjust status) from within the U.S. even if you are currently here without lawful status.

I entered the U.S. without a visa and without inspection, by crossing the Mexican border. Can my spouse sponsor me for a green card?

It’s complicated. You cannot file for a green card from within the United States if you entered without inspection. (There is an exception to this rule for people who had an immigration petition or labor certification filed on their behalf on or before April 30 2001.) That means you will have to return to your home country to apply for a green card through consular processing. However, when you leave the U.S. to apply, you will probably be prohibited from returning because of the three year/ten year bar on returning to the U.S. following the accrual of unlawful presence http://immigrationequality.org/issues/immigration-basics/most-common-questions/#unlawful-presenceundocumented-immigrants here. You may be able to file for a provisional waiver http://immigrationequality.org/issues/transgender/the-provisional-unlawful-presence-waiver/ of this bar from within the U.S. and wait here for the waiver to be approved before you leave the U.S. to use consular processing. This is a complicated application, and you will need to consult with an immigration attorney.

6) I am in the United States but my Partner is Abroad

My spouse and I are legally married. I live in the United States but my spouse currently lives abroad because she had no way to get a green card here. What do we do now?

The two of you can file a marriage-based green card application. Since she is currently outside the United States, the application will be processed through the U.S. consulate in her country (consular processing), meaning that the U.S. consular staff will interview her there, rather than in the U.S. If her application is approved and she enters the U.S., she should be able to do so as a lawful permanent resident.

I live in the United States in a marriage equality state and my partner currently lives abroad because he had no way to get a green card here. We are not married, and same-sex couples are unable to marry in my partner’s home country. What should we do now?

You have several options and should consult with an immigration attorney about them. One possible option is for you to file a fiancé visa petition for him. American citizens can file a fiancé/e visa http://immigrationequality.org/issues/transgender/fiancee-visas-procedural-steps/ petition for a partner overseas with whom he or she has a committed relationship. The couple must marry within 90 days of the foreign partner’s entry into the United States. Once married, the American citizen spouse can file a marriage-based petition for the foreign spouse.

If your partner is able to travel to the United States as a tourist, another possibility would be for him to come to the U.S. as a tourist, marry, and then return to his home country and go through consular processing there. Different consulates have different backlogs in different categories; consult with an immigration attorney to decide which option would be fastest and most appropriate.

I live in the United States in a marriage equality state and my partner lives abroad in a country where same-sex couples are unable to marry. He has never been able to get a visa to the United States, and we are not married. What do I do now?

As with the previous answer, you should be able to file a fiancé visa petition for him. Since he cannot travel to the United States another way, this may be your only option to bring him to the U.S. You may also be able to marry in a third country that has marriage equality if you and your partner can travel to another marriage equality country. He then could apply for lawful permanent residence through consular processing.

I live in a state that does not have marriage equality, and my partner lives abroad in a country where same-sex couples are unable to marry. She has never been able to get a visa to the United States, and we are not married. What do I do now?

As with the previous answer, you should be able to file a fiancée visa petition for her. However, since the state in which you reside would not allow a same-sex couple to celebrate a marriage, you would have to submit evidence with your fiancée petition that indicates you plan to marry in a marriage equality state. This is the approach that USCIS has taken http://www.immigrationequality.org/wp-content/uploads/2012/04/USCIC-guidance-Transgender_FINAL.pdf for fiancé/e visas where one spouse is transgender, which is another area of marriage law where different states have different rules. Another option is that you may be able to marry in a third country that has marriage equality if you and your partner can travel to another marriage equality country and then she could apply for lawful permanent residence through consular processing.

My Partner and I are in Exile – Living Together Outside of the United States

Since my spouse was not able to find a permanent immigration solution in the U.S., we relocated abroad, where we have lived for many years. What do we need to do now to relocate to the U.S.?

To file a marriage-based green card application, the U.S. citizen spouse generally must reside, or submit proof of an intention to reside, in the U.S. If the U.S. citizen spouse lives abroad, part of the application packet should be a letter describing his or her intent to establish a residence in the U.S.

Since my spouse was not able to find a permanent immigration solution in the U.S., we have been living abroad for many years. We are not yet ready to move back to the U.S., but I want to do what I can to establish his right to live there. Can I file for my spouse from abroad if we don’t intend to live in the U.S.?

No, once an individual applies for lawful permanent residence in the U.S., he or she must actually live here. In fact, a green card holder who moves abroad for an extended period of time can lose his or her right to return to the U.S. You should wait until you are ready to actually live in the U.S. to file an application for lawful permanent residence.

8) Other Issues

I am the foreign national spouse of a U.S. citizen and am HIV-positive. Can my spouse still sponsor me for a green card?

Yes. The U.S. ban on immigration for people with HIV/AIDS ended in January 2010. When you take the medical examination as part of the green card application process you will not be tested for HIV. However, the doctor can ask questions about your overall health and medications you are taking, and you should answer honestly. USCIS can take your health into consideration as one factor in determining whether you are “likely to become a public charge,” that is, likely to need public assistance or social security disability benefits. Simply being HIV-positive, however, is not a reason to deny an application for lawful permanent residence, especially if you have a work history.

My foreign national spouse has a child who was born abroad. Can I also file a green card application for her child when I file for my spouse?

You should be able to. Under current law, a U.S. citizen can petition for the minor children of a foreign spouse once a step-parent/step-child relationship has been formed.

I am a lawful permanent resident of the U.S. – I have a green card, but I am not a citizen. Can I sponsor my foreign national spouse for a green card?

Lawful permanent residents can sponsor a spouse for immigration benefits, but under current U.S. law as it applies to all married couples, your spouse would not qualify as an “immediate relative,” but rather would fall under the “family preference system” in category F2A. That means that rather than filing the application for an immigrant visa (I-130) and the application for lawful permanent residence (I-485) simultaneously, you would first have to file the I-130, and then wait for the visa to be current. Presently, there is about a two year wait before she would be able to apply for permanent residence. However, if you become a citizen while she is “in line” to file for permanent residence, she could immediately file for the green card once you are naturalized.

Individuals who fall under the family preference system and wish to apply to adjust status from within the U.S. must be in lawful status and must not have accrued any unlawful presence here. This is different than the rule for spouses of U.S. citizens, who can apply to adjust status even if they are here unlawfully, as long as they entered with inspection.

Also, unlike U.S. citizens, lawful permanent residents cannot sponsor a fiancé/e for a fiancé/e visa, though it may be possible to marry in a third country and go through consular processing for a green card after the marriage.

How soon after I get residence can I apply to become a U.S. citizen?

While the general rule is that an individual must be a lawful permanent resident for five years before applying to become a citizen, spouses of U.S. citizens can apply three years after obtaining their green card, provided they remain married and living together as a couple.

9) Will Things We Said or Did In the Past Affect our Future Application?

I have been in the U.S. for three years on a student visa. I live with my partner and he provides financial support for me, but I have always indicated on my immigration papers that he is a “family friend.” Will the fact that I never disclosed that he’s my partner before make it harder for him to sponsor me for a green card now?

The answer to this may depend on the specific facts of your case. We are advocating that USCIS take a fair and reasonable approach to issues such as this, given the systemic discrimination that LGBT families have faced under U.S. law. If you have any fear that USCIS could find fraud in your case, you should consult with an immigration attorney before filing your application.

10) Information for Dual Foreign National Couples

My spouse and I are both citizens of a foreign country. I have been offered a skilled worker visa (for example an H-1B) to work in the U.S. Can my spouse come with me while I’m in the U.S.?

Yes, she will qualify for an H-4 “derivative” visa, which means your spouse can accompany you for the duration of your visa. However, as with different-sex spouses, your spouse will not be entitled to work while in the U.S.

Contact:

Immigration Equality

This series of fact sheets produced together by:

1) Who qualifies for FMLA leave?

UPDATE (Nov. 15, 2013): The Department of Labor has issued additional guidance post-Windsor on the Family and Medical Leave Act. See Fact Sheet #28F: "Qualifying Reasons for Leave under the Family and Medical Leave Act."

Keep in Mind:

The Supreme Court’s ruling in Windsor applies only to the federal government. It does not change discriminatory state laws excluding same-sex couples from state-conferred marriage rights.
The ruling striking down DOMA will not be effective until 25 days from the decision. Even when effective, federal agencies—large bureaucracies—may need and take some time to change forms, implement procedures, train personnel, and efficiently incorporate same-sex couples into the spousal-based system.
Until same-sex couples can marry in every state in the nation, there will be uncertainty about the extent to which same-sex spouses will receive federal marital-based protections nationwide. For federal programs that assess marital status based on the law of a state that does not respect marriages of same-sex couples, those state laws will likely pose obstacles for legally married couples and surviving spouses in accessing federal protections and responsibilities.
Securing fair access to federal protections that come with marriage for all same-sex couples in the nation will take some time and work. In some situations, it may require Congressional action or formal rule-making by agencies.
Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for people who are on certain public benefits, as getting married may jeopardize your eligibility without providing you the full measure of protections other married couples enjoy. In addition, couples who travel to another place to marry and then return to live in a state that does not respect their marriage may be unfairly unable to obtain a divorce, which can lead to serious negative legal and financial consequences. People must make careful decisions when and where to marry, even as we work together to end this injustice.
We are committed to winning universal access to federal marital protections for married same-sex couples through ongoing public policy advocacy, and, where necessary, strategic litigation. Contact our organizations if you have questions, for updates and to learn more about what you can do to achieve full equality for those who are LGBT.

No tax advice is intended, and nothing therein should be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code.

Contact a qualified attorney in your state for legal advice about your particular situation.

Family and Medical Leave Act for Non-Federal Employees

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.

2) Which employers are covered by the FMLA?

3) How does being married matter for FMLA leave?

4) How do I apply for FMLA leave?

5) Which non-federal employees will be recognized as married for FMLA leave?

6) How can I find out more about FMLA rights of non-federal employees?

1) Who qualifies for FMLA leave?

Any employee who has worked for a covered employer at least 1,250 hours during the 12-month period before the start of the leave is eligible for FMLA leave, so long as the employee has worked for a covered employer for at least a year.

2) Which employers are covered by the FMLA?

The FMLA covers:

Public employers, including state, local or federal government, or a public school. See the guidance for Federal Employees for more information specific to FMLA coverage for federal civilian employees.
Private sector employers with 50 or more employees working for at least 20 workweeks (within a 75-mile radius of ther worksite, if the employer has more than one worksite) in the current or preceding calendar year.

3) How does being married matter for FMLA leave?

The FMLA allows eligible employees of covered employers to take unpaid leave to care for a spouse who has a serious health condition. There are additional and sometimes expanded leave rights for spouses of current and former servicemembers.

4) How do I apply for FMLA leave?

If you want to use FMLA leave, you must give 30 days advance notice to your employer if possible. Where that’s not possible, you must let your employer know as soon as you can. If you need to miss work under FMLA leave without advance notice, you need to follow the usual notification procedures for absences from work. You also will need to give enough information to your employer for your employer to decide whether the FMLA applies to your situation. If you encounter problems, you can contact the Wage and Hour Division at the Department of Labor, or an attorney who specializes in employment law.

To find the Wage and Hour Division office nearest you, go to: http://www.dol.gov/whd/america2.htm.

5) Which non-federal employees will be recognized as married for FMLA leave?

If you live in a state that respects your marriage: You will be considered married for FMLA purposes, and will be entitled to take FMLA leave to care for a sick spouse.
If you live in a state that does not respect your marriage: Existing regulation looks to the law of the employee’s “place of domicile” (state of primary residence) to determine whether a person is a spouse for FMLA purposes. This means that, until the regulation is changed, if you are a non-federal employee, you are unlikely to be considered a spouse for FMLA purposes, even if you used to live in a state that respected your marriage. However, the federal government may take steps to use a “place of celebration” rule so that a spousal status is assessed according to the law of the state where you married or secured a spousal status. This process may take some time. We are working to ensure that the federal government respects married couples wherever possible. If you encounter problems, contact one of the legal organizations listed below.

6) How can I find out more about FMLA rights of non-federal employees?

See Department of Labor, Wage and Hour Division, Family and Medical Leave Act: http://www.dol.gov/whd/fmla/#.UJRK2Ib-ocs.

Contact:

This series of fact sheets produced together by:

1) Health benefits for spouses under the Federal Employee Health Benefits Program (FEHB)

UPDATE (Nov. 15, 2013): See Further Guidance from the Office of Personnel Management (OPM). The OPM has issued guidance on Family and Medical Leave Act (FMLA) protections for same-sex spouses. The Office of Government Ethics has issued guidance for federal employees with same-sex spouses, OGE, LA-13-10: "Effect of the Supreme Court’s Decision in United States v. Windsor on the Executive Branch Ethics Program."

Keep in Mind:

The Supreme Court’s ruling in Windsor applies only to the federal government. It does not change discriminatory state laws excluding same-sex couples from state-conferred marriage rights.
Federal agencies—large bureaucracies—may need and take some time to change forms, implement procedures, train personnel, and efficiently incorporate same-sex couples into the spousal-based system.
Until same-sex couples can marry in every state in the nation, there will be uncertainty about the extent to which same-sex spouses will receive federal marital-based protections nationwide. For federal programs that assess marital status based on the law of a state that does not respect marriages of same-sex couples, those state laws will likely pose obstacles for legally married couples and surviving spouses in accessing federal protections and responsibilities.
Securing fair access to federal protections that come with marriage for all same-sex couples in the nation will take some time and work. In some situations, it may require Congressional action or formal rule-making by agencies.
Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for people who are on certain public benefits, as getting married may jeopardize your eligibility without providing you the full measure of protections other married couples enjoy. In addition, couples who travel to another place to marry and then return to live in a state that does not respect their marriage may be unfairly unable to obtain a divorce, which can lead to serious negative legal and financial consequences. People must make careful decisions when and where to marry, even as we work together to end this injustice.
We are committed to winning universal access to federal marital protections for married same-sex couples through ongoing public policy advocacy, and, where necessary, strategic litigation. Contact our organizations if you have questions, for updates and to learn more about what you can do to achieve full equality for those who are LGBT.

No tax advice is intended, and nothing therein should be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code.

Contact a qualified attorney in your state for legal advice about your particular situation.

Benefits and Protections for Civilian Federal Employees and their Spouses

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. See www.opm.gov.

In addition, on June 28, 2013, following the Supreme Court’s June 26, 2013 ruling in United States v. Windsor, OPM issued a Memorandum for Heads of Executive Departments and Agencies, titled “Guidance on the Extension of Benefits to Married Gay and Lesbian Federal Employees, Annuitants, and Their Families. This Memorandum contains initial information about OPM’s extension of benefits to federal employees and annuitants who have legally married a spouse of the same sex. It includes important information about timing to apply for certain benefits. Consult the June 28, 2013 Memorandum for additional information, and continue to check OPM’s website for updates.

There may be initial uncertainty about how OPM will process some types of applications for benefits and protections for employees’ spouses. There may also 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. Federal employees and their spouses with questions about these issues may contact OPM and their agency's Chief Human Capital Officer. Our organizations will endeavor to provide any updates as we acquire more information. Please contact the legal organizations listed below if you encounter problems or have additional questions.

2) Benefits for Spouses Under the Federal Employee Dental and Vision Insurance Program (FEDVIP)

3) Federal Long Term Care Insurance Program (FLTCIP)

4) Federal Employees’ Group Life Insurance Program (FEGLI)

5) Federal Family and Medical Leave Act (FMLA) Benefits and Other Family-Related Leave

6) Federal Flexible Spending Account (FSAFEDS)

7) Retirement and Survivors Benefits (CSRS, FERS)

8) ETHICS AND CONFLICTS OF INTERESTS RULES GOVERNING FEDERAL EMPLOYEES AND THEIR SPOUSES

1) Health benefits for spouses under the Federal Employee Health Benefits Program (FEHB)

Spouses of federal employees may be eligible for employer-provided health insurance coverage. The types of health plans, premium levels, and application requirements may vary depending on the federal agency and the state where the employee works or lives. See http://www.opm.gov/healthcare-insurance/healthcare/plan-information/ Employees should check with OPM and/or their agency human resources staff for more information.

Q. If a federal employee gets married, can the employee add the new spouse to the employee’s health insurance plan?

A. Generally, a federal employee’s marriage is considered a “qualifying life event” (QLE), when an employee may change his or her insurance coverage by adding the new spouse to the employee’s policy. The employee must submit the enrollment change between 31 days before to 60 days after the QLE, i.e., the marriage. For more information on adding a spouse as a QLE, go to: http://www.opm.gov/healthcare-insurance/life-events/.

Q. Can a federal employee who is already married add his or her spouse to the employee’s health insurance plan now that DOMA has been struck down?

A.OPM’s June 28, 2013 Memorandum, excerpted here, provides answers to this question:

Employees and annuitants will have 60 days from June 26, 2013 [the date of the Supreme Court’s Windsor opinion] until August 26, 2013, to make immediate changes to their FEHB enrollment. Enrollees will continue to be eligible to make changes to their coverage options during Open Season later this year. For those employees and annuitants who already have a Self and Family insurance plan, coverage for their same-sex spouse will begin immediately upon their notifying their FEHB carrier that there is a newly eligible family member. For those employees and annuitants electing Self and Family for the first time, benefits will be effective on the first day of the first pay period after the enrollment request is received. While online enrollment systems are updated, if may be necessary for employees and annuitants to update their elections using the paper (rather than electronic) version of the SF2809 form.

The federal government also has a regular FEHB “Open Season” period when an employee may make changes to the employee’s enrollment status, including the addition of a spouse to the employee’s coverage. In 2012, the FEHB Open Season ran from November 12 – December 10, 2012, during which period changes could be made for the 2013 plan year. OPM generally posts information about an upcoming Open Season in October. See http://www.opm.gov/healthcare-insurance/healthcare/plan-information/enroll/#Employees.

In addition, under certain circumstances, loss of pre-existing health insurance coverage by an employee’s spouse is a QLE, allowing the employee to add the spouse to the employee’s FEHB plan outside of Open Season. See http://www.opm.gov/healthcare-insurance/healthcare/plan-information/changes-you-can-make-outside-of-open-season/.

Q. Can the spouse of a federal employee who retires continue health insurance coverage on the employee’s FEHB plan?

A. A spouse of an employee is eligible to continue health benefits coverage upon the federal employee’s retirement if:

the employee is entitled to retire on an immediate annuity under a retirement system for civilian employees, and
the non-employee spouse has been covered as a family member in any FEHB plan for the 5 years of the federal employee’s service immediately before the date the annuity starts, or for the full period of service since the spouse’s first opportunity to enroll (if less than 5 years).

See http://www.opm.gov/healthcare-insurance/healthcare/reference-materials/reference/annuitants-and-compensationers/.

Q. If a federal employee divorces, can the employee’s spouse remain on the employee’s FEHB plan?

A. Divorce, annulment or legal separation are QLEs, when an employee can make changes to the employee’s plan outside of the Open Season. See http://www.opm.gov/healthcare-insurance/healthcare/plan-information/changes-you-can-make-outside-of-open-season/.

A federal employee’s spouse loses eligibility for coverage under the employee’s Self and Family Plan when a divorce decree ending the marriage becomes final. However, the spouse may be entitled either to temporary continuation of coverage or to convert to an individual policy with the employee’s insurance carrier. After divorce, a former spouse of an employee may under certain circumstances be eligible for coverage under “spouse equity” provisions. See http://www.opm.gov/healthcare-insurance/healthcare/reference-materials/reference/former-spouses/.

Q. If the employee lives in a state that does not recognize the marriages of same-sex couples, is the employee still entitled to FEHB coverage for a same-sex spouse?

A. We believe that the federal employee should be entitled to have his or her validly-entered marriage respected by the federal government for purposes of FEHB spousal coverage, even if the employee lives in a state that does not respect the employee’s marriage. There is no statute or regulation prohibiting FEHB coverage for such spouses. However, there may be some initial uncertainty about how the federal government will process applications for spousal coverage from employees living in states that do not respect the employees’ marriages. If an employee or spouse encounters problems or questions, they should contact a legal organization listed below.

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2) Benefits for Spouses Under the Federal Employee Dental and Vision Insurance Program (FEDVIP)

Dental and vision benefits are available to eligible federal employees and their eligible family members, including spouses, on an enrollee-pay-all basis. For general information, see http://www.opm.gov/healthcare-insurance/dental-vision/.

Q. Can a federal employee obtain FEDVIP dental and vision insurance for the employee’s spouse?

A. Yes. A marriage is a qualifying life event (QLE), allowing a federal employee to add the spouse to dental and vision coverage by submitting the enrollment change between 31 days before and 60 days after the marriage. See here. A federal employee can also add the spouse to FEDVIP during the annual Federal Benefits Open Season.

According to OPM’s June 28, 2013 Memorandum, OPM is also allowing current FEDVIP enrollees to make enrollment changes during a 60-day period from June 26, 2013 until August 26, 2013. Current FEDVIP enrollees can call BENEFEDS (877-888-FEDS (3337)) directly to make the necessary enrollment changes. Current enrollees will also be able to make changes to their coverage options during Open Season later in the year, and individuals wishing to enroll in FEDVIP for the first time may also do so at that point as well.

Q. If a federal employee divorces, can the former spouse retain FEDVIP dental and vision coverage?

A. No. Unlike for FEHB health insurance coverage, former spouses of federal employees are ineligible for continued FEDVIP coverage. See http://www.opm.gov/healthcare-insurance/dental-vision/eligibility/.

Q. Can the spouse of a federal employee who retires continue dental and vision insurance coverage on the employee’s FEDVIP plan?

A. Yes.

Q. If the employee lives in a state that does not recognize the marriages of same-sex couples, is the employee still entitled to FEDVIP coverage for a same-sex spouse?

A. We believe that the federal employee should be entitled to have his or her validly-entered marriage respected by the federal government for purposes of FEDVIP spousal coverage, even if the employee lives in a state that does not respect the employee’s marriage. There is no statute or regulation prohibiting FEDVIP coverage for such spouses. However, there may be some initial uncertainty about how the federal government will process applications for spousal coverage from employees living in states that do not respect the employees’ marriages. If an employee encounters problems or questions, they should contact a legal organization listed below.

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3) Federal Long Term Care Insurance Program (FLTCIP)

The Federal Long Term Care Insurance Program (FLTCIP) provides long term care insurance to help pay for costs of care when enrollees need help with activities they perform every day, or if they have a severe cognitive impairment, such as Alzheimer’s disease. Federal employees and annuitants and their qualified relatives are eligible to apply for insurance coverage under the FLTCIP. Spouses, as well as domestic partners, are qualified relatives who can apply for the long term insurance coverage. See http://www.opm.gov/healthcare-insurance/long-term-care/.

Q. Now that DOMA has been struck down, when can my spouse apply for long-term care insurance under FLTCIP?

A. According to OPM’s June 28, 2013 Memorandum, same-sex spouses of federal employees have 60 days from June 26, 2013, to apply for FLTCIP coverage, with abbreviated underwriting.

Q. If the employee lives in a state that does not recognize the marriages of same-sex couples, can a federal employee’s same-sex spouse apply for long term insurance coverage?

A. We believe that the federal employee should be entitled to have his or her validly-entered marriage respected by the federal government for purposes of FLTCIP spousal coverage, even if the employee lives in a state that does not respect the employee’s marriage. There is no statute or regulation prohibiting FLTCIP coverage for such spouses. In addition, already the domestic partner of an employee may apply for FLTCIP coverage. If an employee or spouse encounters problems or questions, they should contact a legal organization listed below.

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4) Federal Employees’ Group Life Insurance Program (FEGLI)

The FEGLI program offers some group life insurance protections for the spouse of a federal employee.

Q. How does a spouse of a federal employee become a beneficiary of the employee’s FEGLI policy?

A. Eligible federal employees are automatically enrolled in “Basic” insurance, providing an insurance benefit to a beneficiary upon the death of the employee. Federal employees may also opt to purchase additional insurance to benefit a beneficiary upon the employee’s death. A federal employee may designate a person of the employee’s choice to be the beneficiary of these FEGLI policies. This person could be the employee’s spouse or unmarried domestic partner. If the federal employee has not designated anyone as beneficiary, the employee’s surviving spouse automatically takes priority as beneficiary. An employee can update and change a beneficiary designation. See here.

Q. Can a federal employee purchase FEGLI group life insurance to insure the employee’s spouse?

A. Eligible federal employees can purchase an “Option C” FEGLI policy to insure the life of the employee’s spouse. Upon the death of the spouse, insurance proceeds will be paid to the employee. An employee may elect Option C coverage on a spouse by submitting an election for the coverage within 60 days of the marriage, which is considered a qualifying life event, or during an Open Season. See here.

According to OPM’s June 28, 2013 Memorandum, employees will have 60 days from June 26, 2013, until August 26, 2013, to make changes to their FEGLI enrollment to add newly eligible same-sex spouses and children under Option C.

It is important to note that FEGLI Open Seasons do not occur on an annual basis and are held only when specifically scheduled by OPM, so employees may not have another opportunity in the near future to make these changes.

Q. If the employee lives in a state that does not recognize the marriages of same-sex couples, can a federal employee’s same-sex spouse qualify as a spouse for FEGLI purposes?

A. We believe that the spouse would be eligible to apply for the coverage if the spouse lives in a state that does not respect the couple’s marriage. There is no statute or regulation dictating a different approach. However, there may be some initial uncertainty about whether the federal government will recognize for FEGLI purposes the marriages of employees living in states that do not respect the employees’ marriages.

For extra protection, federal employees who want their same-sex spouses to be the beneficiaries of the employees’ FEGLI policies can formally designate their spouses as their beneficiaries and not rely only on the default rule making a surviving spouse the beneficiary when no express designation has been made. That way, it should not matter whether there could have been any question whether OPM would recognize the marriage depending on the law of the particular state where the couple has lived. The spouse will have been expressly designated as the beneficiary of the employee’s FEGLI policies and protected as a beneficiary.

If an employee or spouse encounters problems or questions, they should contact a legal organization listed below.

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5) Federal Family and Medical Leave Act (FMLA) Benefits and Other Family-Related Leave

Federal employees are entitled to take leave under certain circumstances to care for a spouse or to arrange and attend a spouse’s funeral.

Q. Can a federal employee take FMLA leave to care for a spouse?

A. Yes. Under the Family and Medical Leave Act of 1993 (FMLA), federal employees are entitled to a total of up to 12 work weeks of unpaid leave during any 12-month period for:

the care of a spouse who has a serious health condition, or
in the event of a qualifying exigency arising because a spouse is on covered active duty or has been notified of an impending call or order to covered active duty in the Armed Forces.

Under certain conditions, an employee may use the 12 weeks of FMLA leave intermittently. An employee under some circumstances may elect to substitute annual leave and/or a limited amount of sick leave for any unpaid leave under the FMLA. FMLA leave is in addition to other paid time off available to an employee.

Federal employees may also be entitled to a total of 26 weeks of leave during any 12-month period to care for a spouse in the military who has become injured or ill in the line of duty while on active duty.

Q. What job benefits and protections does a federal employee receive under the FMLA?

A. Upon return from FMLA leave, an employee must be returned to the same position or to an equivalent position with equivalent benefits, pay, status, and other terms and conditions of employment. An employee who takes FMLA leave is also entitled to maintain health benefits coverage. An employee on unpaid FMLA leave may pay the employee share of the premiums on a current basis or pay upon return to work.

Q. Must an employee provide notice of intent to take family and medical leave to care for a spouse?

A. Yes, an employee must provide notice of his or her intent to take family and medical leave not less than 30 days before leave is to begin or, in emergencies, as soon as is practicable. An agency may request medical certification for FMLA leave taken to care for an employee’s spouse who has a serious health condition.

For more information on FMLA leave to care for the spouse of a federal employee, see http://www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-sheets/family-and-medical-leave/.

Q. Does a federal employee have other protections if he or she needs to take leave because something happens to the employee’s spouse?

A. A federal employee may use up to 13 days of annual sick leave under certain circumstances to care for a family member or attend the family member’s funeral. “Family member” includes a spouse, and, under a 2010 federal regulation, an unmarried domestic partner as well. The sick leave may be used to:

provide care for a family member, including a spouse or domestic partner, who is incapacitated as a result of physical or mental illness, injury, pregnancy, or childbirth;
attend to a family member receiving medical, dental, or optical examination or treatment;
provide care under certain circumstances for a family member who has been exposed to a communicable disease; or
make arrangements necessitated by the family member’s death or attend the family member’s funeral.

See this article.

Q. If the employee lives in a state that does not recognize the marriages of same-sex couples, is the employee still entitled to FMLA leave to care for a same-sex spouse?

A. We believe that the federal employee should be entitled to have his or her validly-entered marriage respected by the federal government for federal FMLA, even if the employee lives in a state that does not respect the employee’s marriage. There may be some initial uncertainty about how the federal government will process requests for federal FMLA leave to care for spouses from employees living in states that do not respect the employees’ marriages. If an employee encounters problems or questions, they should contact a legal organization listed below.

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6) Federal Flexible Spending Account (FSAFEDS)

An FSAFEDS account is an account in which an eligible federal employee can contribute money from the employee’s salary BEFORE taxes are withheld, and then receive reimbursement for family out-of-pocket health care—including a spouse’s health expenses—and dependent care expenses.

Q. If a federal employee’s marital status changes, can the employee change his or her flexible spending account (FSA) election accordingly?

A. A federal employee may change the FSA election between 31 days before and 60 days after a Qualifying Life Event (QLE), including marriage, legal separation, divorce, or the death of a spouse. See https://www.fsafeds.com/forms/qscfact.pdf. Otherwise, the employee may make changes to his or FSA election during the annual Open Season. See http://www.opm.gov/healthcare-insurance/flexible-spending-accounts/.

The OPM’s June 28, 2013 Memorandum advises that “[a]ll employees who are in legal same-sex marriages will now be able to submit claims for medical expenses for their same-sex spouse and any newly qualifying (step)children to their flexible spending program.”

Q. If a federal employee lives in a state that does not respect his or her marriage to a spouse of the same sex, will the employee’s spouse be treated as a family member whose health expenses may be reimbursed from the FSAFEDS account?

A. Because the FSAFEDS benefit is a tax benefit regulated by the Internal Revenue Service (IRS), the answer awaits guidance from OPM and/or the IRS. The IRS ordinarily follows the law of the state of domicile (primary residence) in determining whether to recognize a marriage. However, the IRS has recognized “common law” marriages for tax purposes as long as they were valid where celebrated, even if they are not recognized in the state of domicile. In our mobile society, it would make more sense for the IRS to use a place of celebration rule, under which a marriage is recognized by the federal government so long as it was valid where entered, for all marriages and not just for “common law” marriages. Our organizations are encouraging use of the place of celebration rule as broadly as possible. If an employee or spouse encounters problems or questions, they should contact a legal organization listed below. This is not intended as tax advice; consult with your own tax advisor for information about your own situation.

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7) Retirement and Survivors Benefits (CSRS, FERS)

Eligible federal employees are entitled to federal retirement benefits under either the Civil Service Retirement System (CSRS), or the Federal Employees Retirement System (FERS). Each of these plans includes certain benefits for the employee’s spouse.

Q. What kinds of benefits are available to spouses of retired employees through CSRS or FERS?

A. There are several types of benefits available to spouses of retired employees under FERS. The two programs do not have entirely identical coverage; check www.opm.gov for more information on specific benefits available under FERS or CSRS. The types of benefits generally available include:

1. Basic employee death benefit: The spouse of an employee or retiree with a CSRS or FERS plan may receive a basic employee death benefit in the form of a one-time lump sum payment.

2. Survivor annuity: The surviving spouse of a federal employee with a FERS or CSRSaccount, may receive a survivor annuity in the form of a monthly payment after that employee’s death. Federal employees have a portion of their paychecks withheld, which goes toward their retirement accounts. Upon retirement, an employee wishing to provide a survivor annuity to his or her spouse receives a reduced fixed sum out of this account each month until death (a monthly annuity). If the employee has a surviving spouse, that spouse may be eligible to receive a monthly survivor’s annuity after the employee dies, based on a percentage of the amount of the employee’s monthly annuity.

To qualify for the monthly benefit the surviving spouse must have been married to the employee for at least nine months, or, if the death occurred before nine months, a survivor annuity may still be payable if the employee’s death was accidental, or there was a child born of the marriage.

Monthly benefits may also be paid to the former spouse of a deceased employee under a court order. A former spouse must also meet the nine month marriage requirement and the employee must have re-elected to provide a survivor annuity to his or her former spouse within two years of the divorce being final or must have provided for the survivor annuity in the divorce decree.

See http://www.opm.gov/retirement-services/fers-information/survivors/#url=Overview.

3. Lump sum payment: A lump sum payment is made when an employee dies without anyone who qualifies to receive a survivor annuity and a balance remains in the retirement account. The employee may make an advance designation of beneficiary to receive such a lump payment. If the employee has not made an advance designation, the employee’s surviving spouse has first priority to receive the lump sum payment. See http://www.opm.gov/retirement-services/csrs-information/survivors/#url=No-Beneficiary.

Q. Now that DOMA has been struck down, when can retirees married to same-sex spouses make changes to their retirement benefits based on their marital status?

A. OPM’s June 28, 2013 Memorandum provides the following information:

All retirees who are in legal same-sex marriages will have two years from the date of the Supreme Court’s decision (i.e., June 26, 2015) to inform OPM that they have a legal marriage that now qualifies for recognition and elect any changes to their retirement benefits based on their recognized marital status. In the coming days, OPM will be developing guidance to help retirees determine whether they wish to change their pension benefits in a way that will provide benefits for their surviving spouse. Retirees will need to determine whether this option makes sense for them, as making this election will likely result in a deduction to the monthly annuity that the retiree currently receives. Going forward, the same-sex spouses of retiring employees will be eligible for survivor annuities.

Q. Can a spouse receive a survivor annuity regardless of whether the employee married before or after retiring?

A. Widow(er)s who were married to the employee at the time of the employee’s retirement are entitled to an annuity, unless the spouse consents not to receive the annuity. See http://www.opm.gov/retire/pubs/handbook/C052.pdf. If a federal employee marries after retirement and wants the spouse to be able to receive an annuity, generally, the employee must file an election within two years of the date of the marriage. See this article. However, see the preceding Q&A for OPM’s June 28, 2013 guidance and timing information for retirees with same-sex spouses.

Q. If a federal employee lives in a state that does not respect his or her marriage to a spouse of the same sex, will the employee’s spouse qualify as a spouse for federal FERS or CSRS purposes?

A. There currently is uncertainty about this. Existing federal regulations applying to FERS and CSRS define “marriage” as “a marriage recognized in law or equity under the whole law of the jurisdiction with the most significant interest in the marital status of the employee . . . or retiree.” See 5 C.F.R. § 843.102 (FERS); 5 C.F.R. § 831.603 (CSRS). Applying this definition to other types of marriages, courts and the OPM have generally considered the jurisdiction with the most significant interest to be the place where the couple predominately lived while the employee was working, after retirement, and/or at the time of the employee’s death. This may mean that a federal employee who has never lived or worked in a state that respects the employee’s marriage may be deemed not to qualify for protections for the employee’s spouse under those regulations. However, the federal government may interpret the regulations and the circumstances of married same-sex couples to permit recognition of such marriages. It may also amend the regulations to clarify that same-sex couples who entered into marriages valid where celebrated, regardless of where the couple happens to live, will be respected as married for FERS and CSRS purposes. That process would likely take months. Our organizations are encouraging adoption of such a “place of celebration” rule to allow a same-sex couple’s marriage to be recognized for such federal purposes wherever they live or relocate.

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8) ETHICS AND CONFLICTS OF INTERESTS RULES GOVERNING FEDERAL EMPLOYEES AND THEIR SPOUSES

Federal employees and their spouses should also be aware that ethics and conflicts of interest rules governing the conduct of federal employees and their spouses will now apply to same-sex married couples. Federal employees and same-sex spouses should be alert to such considerations and seek advice from their own counsel if they have questions. The United States Office of Government Ethics may offer additional information. See http://www.oge.gov.

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Contact:

Lambda Legal

Gay & Lesbian Advocates & Defenders

American Civil Liberties Union

National Center for Lesbian Rights

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2) Do I qualify for financial aid?

Keep in Mind:

The Supreme Court’s ruling in Windsor applies only to the federal government. It does not change discriminatory state laws excluding same-sex couples from state-conferred marriage rights.
Federal agencies—large bureaucracies—may need and take some time to change forms, implement procedures, train personnel, and efficiently incorporate same-sex couples into the spousal-based system.
Until same-sex couples can marry in every state in the nation, there will be uncertainty about the extent to which same-sex spouses will receive federal marital-based protections nationwide. For federal programs that assess marital status based on the law of a state that does not respect marriages of same-sex couples, those state laws will likely pose obstacles for legally married couples and surviving spouses in accessing federal protections and responsibilities.
Securing fair access to federal protections that come with marriage for all same-sex couples in the nation will take some time and work. In some situations, it may require Congressional action or formal rule-making by agencies.
Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for people who are on certain public benefits, as getting married may jeopardize your eligibility without providing you the full measure of protections other married couples enjoy. In addition, couples who travel to another place to marry and then return to live in a state that does not respect their marriage may be unfairly unable to obtain a divorce, which can lead to serious negative legal and financial consequences. People must make careful decisions when and where to marry, even as we work together to end this injustice.
We are committed to winning universal access to federal marital protections for married same-sex couples through ongoing public policy advocacy, and, where necessary, strategic litigation. Contact our organizations if you have questions, for updates and to learn more about what you can do to achieve full equality for those who are LGBT.

No tax advice is intended, and nothing therein should be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code.

Contact a qualified attorney in your state for legal advice about your particular situation.

The Free Application for Federal Student Aid (FAFSA)

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.

You can access the FAFSA, fill out the online application, or print a paper application at www.fafsa.ed.gov.

The FAFSA calculates your potential aid based on your individual circumstances, the income of your household, and the possible contributions of your parents and spouse or “expected family contribution” (EFC). A dependent student’s EFC is calculated based on his or her parents’ adjusted gross income plus the student’s available income. An independent student’s EFC is calculated based on the student and spouse’s combined adjusted gross income, if the independent student is married.

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.

The FAFSA is a complex federal form. Please do your own research and consult a financial aid officer or the Department of Education for advice about your specific circumstances.

1) Updated FAFSA Form

3) Should I list both of my parents on the FAFSA application?

4) How do I know if my parents qualify as my “legal parents”?

5) Should I list my same-sex partner on the FAFSA application?

1) Updated FAFSA Form

Prior to the Supreme Court’s ruling on DOMA, the Department of Education proposed an update to the FAFSA application that requires all applicants to list both of their legal parents regardless of marital status, provided they live together. This update only impacts applicants filling out the FAFSA for the 2014-2015 school year and beyond. When this new form comes into effect during the 2014-2015 funding cycle, marital status will no longer be relevant for applicants whose same- or different-sex legal parents are living together.

This guidance is for applicants using the 2013-2014 or 2014-2015 FAFSA forms.
Please be sure to refer to the section that corresponds to your FAFSA form.

2) Do I qualify for financial aid?

This guidance cannot answer that question because every financial aid applicant’s situation is unique. Your eligibility for federal financial aid is an individual calculation based on your personal circumstances. Contact a financial aid officer for more information.

3) Should I list both of my parents on the FAFSA application?

2014-2015

If you are using the 2014-2015 FAFSA, you are required to list both your parents (and their income and potential contributions) if they live together and if they are your legal parents, regardless of their marital status. This is true for same- and different-sex couples.

If you are using the 2014-2015 FAFSA, you will not need to list both of your parents if:

· They do not live together; OR

· They are not both your legal parents (list only the legal parent). If you have a step-parent married to your legal parent, however, you will be required to list the step-parent.

2013-2014

If you are using the 2013-2014 FAFSA, there are two circumstances under which you must list both of your parents on the FAFSA form:

· Your parents live together AND

o Are a different-sex couple and are married; OR

o Are a same-sex couple and were validly married in a jurisdiction where same-sex couples may marry, and both are your legal parents.

§ If your parents were married in a marriage equality state, but now live in a state that does not recognize their relationship, you must list them. FAFSA uses a place of celebration standard, which means even if your parents were married in a marriage equality state and then moved to a state that does not recognize their marriage, they are considered married for the purposes of FAFSA.

If you are using the 2013-2014 FAFSA, you do not need to list both of your parents if:

· Your parents are not married, regardless of their living situation;

· Your parents are divorced, regardless of their living situation; OR

· Your parents have a registered domestic partnership or civil union, regardless of their living situation.

4) How do I know if my parents qualify as my “legal parents”?

Your parents qualify as “legal parents” if they are considered such under the state law where you live. Every state has different laws about who is a legal parent. Please contact a legal organization listed below for more information about your state. We also recommend that you consult with a lawyer in your state if you are unsure about who qualifies as your legal parents. As explained above, only legal parents who live together must both be listed. If you have two legal parents who do not live together, only the parent you live with should be listed.

A legal parent is anyone who:

· Is an adoptive parent; or

· Has a valid court order saying they are a parent.

Other people who may be your legal parent include:

· A biological parent, unless they are a sperm or egg donor or a surrogate under your state's laws, or their rights were terminated by a court;

· Parents who were married to or in a civil union or registered domestic partnership with a legal parent at the time you were born if you live in a state that recognizes their relationship; or

· In some states, parents who have lived with you and held themselves out as your parent, who were intended parents who conceived you through assisted reproduction, or who qualify under other laws in your state that recognize them as parents.

Should I list my same-sex partner on the FAFSA application?

2014-2015

If you are using the 2014-2015 FAFSA, you must list your same-sex spouse if you were validly married in a jurisdiction that allows same-sex couples to marry, regardless of where you now live. If you are not married, even if you have a legally recognized civil union or domestic partnership, you do not need to list your partner.

2013-2014

If you are using the 2013-2014 FAFSA, you must list your same-sex spouse if you were married in a jurisdiction that allows same-sex couples to marry, regardless of where you now live. If you are not married, even if you have a legally recognized civil union or domestic partnership, you do not need to list your partner.

Contact:

Family Equality Council

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The Supreme Court’s historic ruling striking down Section 3 of the discriminatory Defense of Marriage Act (DOMA) is an enormous victory for loving, married couples and their families, and affirms that they deserve equal treatment under the law. This victory demonstrates the importance of access to marriage, and gives married same-sex couples access to the tangible benefits of the federal safety net, allowing them to better protect one another and their children.

Edie Windsor demonstrated tremendous courage in standing up and speaking out for her 44-year relationship and marriage when she was treated unjustly, and her actions have directly improved the lives of all same-sex couples.

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.

This historic decision takes effect in 25 days. For legally married couples living outside of a marriage state or the District of Columbia, there are still many questions about when they will be equally able to share in federal protections, responsibilities, and programs. This is because the federal government typically defers to the states in determining whether a couple’s marriage is valid. There is no one rule across all federal agencies. Some agencies look to the law of the state where a couple married regardless of the law of the state where the couple now lives, while others look to the law of the state where the couple is living now.

We think the federal government can and should take action, where necessary, to ensure that married couples in all states have access to the largest number of federal programs. The federal government is already looking at how federal agencies can ensure fair and equal treatment of all married couples where possible. However, at this time, there are a number of important federal benefits that depend on whether your marriage is recognized where you live, so couples who live in states with bans on marriage by same-sex couples should proceed with caution before making the decision to marry.

CAUTION: If you live in a state that discriminates against married same-sex couples, you should be aware that the Supreme Court decision striking down part of the federal so-called Defense of Marriage Act does NOT mean that your state must respect your marriage or that you will be eligible for all marriage-based federal benefits. Further work is still required to end marriage discrimination nationwide and to secure both state and federal equal treatment for all marriages.

Depending on your individual circumstances, the current patchwork of discriminatory laws may be financially detrimental to you or your partner and may create financial and legal complications for you and your family. Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for people who have or are applying for government benefits. Getting married may jeopardize your eligibility for certain public benefits without providing you the full measure of protections other married couples enjoy.

In addition, if you travel to another place to marry and then return to live in a state that does not respect your marriage, you may be unfairly unable to obtain a divorce, which can lead to serious negative legal and financial consequences. Same-sex couples will continue to endure a mix of respect, discrimination, and uncertainty until we have secured the freedom to marry and full respect nationwide. People must make careful decisions when and where to marry, even as we work together to end this injustice.

The following questions lay out what we know so far.

1) What does this mean for legally married same-sex couples living in a state that respects their marriage?

2) What about legally married same-sex couples living in a state that does not respect their marriages?

3) Will legally married same-sex couples receive retroactive access to benefits they were previously denied?

4) Is all of DOMA now completely repealed?

5) What are the movement’s next steps on DOMA?

1) What does this mean for legally married same-sex couples living in a state that respects their marriage?

Same-sex couples who are legally married and live in a state that respects their marriage should be eligible virtually right away for the same protections, responsibilities, and access to federal programs afforded to all other married couples. The federal government may take some additional time to change forms, train staff, and otherwise prepare for this change. We expect further guidance from the federal government and will update this Q&A and the “After DOMA: What it Means For You” LGBT Organization Fact Sheet Series accordingly.

There are more than 1,100 places in federal law where a protection or responsibility is based on marital status. A few key examples include access to Social Security survivors’ benefits; the option to use family medical leave to care for a spouse; the opportunity to sponsor a foreign-born spouse for citizenship; and access to veterans’ spousal benefits.

2) What about legally married same-sex couples living in a state that does not respect their marriages?

Legally married same-sex couples living in a state that does not respect their marriages may right away have access to some federal rights and benefits, but not to many others, at least not immediately. Federal agencies have different approaches regarding which state’s laws they look to in order to determine if a marriage is valid for federal purposes. Some, including the IRS and Social Security, have looked to the laws of the state where a couple lives (place of domicile/residence). Others, including immigration agencies, look to where a couple got married (place of celebration). Other federal agencies and programs look to the state “with the most significant interest” in the marriage, and many have no explicit rule at all.

Some federal programs, including immigration, already use a “place of celebration” standard. This standard best provides certainty, clarity, and stability for couples, their loved ones, employers, government agencies, and others, especially in a society where people regularly move for jobs, family, and many other purposes. Such a standard would simply acknowledge that a couple is married for federal purposes regardless of where the couple lives; it wouldn’t tell a state how it must treat married same-sex couples.

For many programs, the administration can take steps to adopt the standard fairest to all married couples: the “place of celebration” standard. Some agencies can use this time-honored legal standard just by changing their practices. Others may have to change regulations, requiring a more lengthy process of proposing new rules and soliciting public comments, or laws. Because the Supreme Court’s decision does not require states to recognize the marriage of same-sex couples and does not guarantee that married couples who live in states with marriage bans will receive all of the federal benefits based on marriage, couples who live in these states should proceed with caution before deciding to marry. Depending on your individual circumstances, getting married may be financially or legally detrimental, especially if you are receiving certain government benefits. Couples should seek out individualized legal advice from a knowledgeable attorney before traveling to another place to marry.

3) Will legally married same-sex couples receive retroactive access to benefits they were previously denied?

It depends on a number of circumstances. As a general matter, if a person is not prohibited by a deadline in the law from seeking benefits, he or she may file an application and seek certain back benefits. However, many benefits start to accrue only with an application, so the date of application will be the starting point. For claims reaching into the past, as with claims for overpaid taxes, there are specific time limits on when refund claims may be brought forward. The “After DOMA: What it Means For You” LGBT Organization Fact Sheet Series addresses many of these questions.

There are many financial benefits that married same-sex couples have missed out on because the federal government did not respect their marriage. But it is likely that the federal government will, in most instances, adopt a forward-looking approach, ensuring that married same-sex couples are respected as married from the day the Court’s ruling takes effect.

4) Is all of DOMA now completely repealed?

No. The Windsor case challenged the constitutionality of Section 3 of DOMA, the part that discriminatorily excluded married same-sex couples from federal protections, responsibilities, and programs. Section 2 of DOMA, which says that states may discriminate against gay couples legally married in other states, still stands. Legislative action will be needed to remove it, although getting rid of Section 2 will not eliminate discriminatory state marriage laws.

The Respect for Marriage Act, a bill pending in Congress that enjoys bipartisan support and the backing of President Obama, would fully repeal all of DOMA. It would also ensure that all married couples — including same-sex couples — enjoy equal rights under federal law. It would not tell states what to do, but would ensure that the federal government treats all marriages with respect.

5) What are the movement’s next steps on DOMA?

The undersigned LGBT organizations are working with others in the Respect for Marriage Coalition to ensure that the greatest number of federal protections, responsibilities, and programs are available to married couples as soon as possible. In some cases, this may require policy and regulatory changes within the agencies, some of which could take time. Further legislative action may also be needed, particularly to get rid of the rest of DOMA. To that end, we will continue to advocate for the Respect for Marriage Act in Congress.

We are committed to working until every single legally married same-sex couple receives the same protections, responsibilities, and programs as all other married couples – regardless of where they live – and to securing the freedom to marry nationwide.

Implementation of federal rights, benefits, and protections will vary from state to state and on an individual basis. We encourage you to consult a legal or tax professional to determine the best next steps you can take. This document is intended to provide an educational overview, not to serve as legal advice or a guide for making personal financial decisions.

Contact:

Center for American Progress

Family Equality Council

Freedom to Marry

Human Rights Campaign

Immigration Equality

National Gay and Lesbian Taskforce

OutServe-SLDN

This series of fact sheets produced together by:

1) What kinds of bankruptcy proceedings are available to individuals?

Keep in Mind:

The Supreme Court’s ruling in Windsor applies only to the federal government. It does not change discriminatory state laws excluding same-sex couples from state-conferred marriage rights.
Federal agencies—large bureaucracies—may need and take some time to change forms, implement procedures, train personnel, and efficiently incorporate same-sex couples into the spousal-based system.
Until same-sex couples can marry in every state in the nation, there will be uncertainty about the extent to which same-sex spouses will receive federal marital-based protections nationwide. For federal programs that assess marital status based on the law of a state that does not respect marriages of same-sex couples, those state laws will likely pose obstacles for legally married couples and surviving spouses in accessing federal protections and responsibilities.
Securing fair access to federal protections that come with marriage for all same-sex couples in the nation will take some time and work. In some situations, it may require Congressional action or formal rule-making by agencies.
Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for people who are on certain public benefits, as getting married may jeopardize your eligibility without providing you the full measure of protections other married couples enjoy. In addition, couples who travel to another place to marry and then return to live in a state that does not respect their marriage may be unfairly unable to obtain a divorce, which can lead to serious negative legal and financial consequences. People must make careful decisions when and where to marry, even as we work together to end this injustice.
We are committed to winning universal access to federal marital protections for married same-sex couples through ongoing public policy advocacy, and, where necessary, strategic litigation. Contact our organizations if you have questions, for updates and to learn more about what you can do to achieve full equality for those who are LGBT.

No tax advice is intended, and nothing therein should be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code.

Contact a qualified attorney in your state for legal advice about your particular situation.

Bankruptcy

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.

2) How can marriage or having been married impact a bankruptcy filing?

3) Who will be recognized as married for bankruptcy filing purposes?

4) How can I find out more about how bankruptcy works, and how to file?

1) What kinds of bankruptcy proceedings are available to individuals?

Married people can file for bankruptcy either singly or jointly (where both spouses file together). Businesses also can file for bankruptcy. There are many different kinds of bankruptcy proceedings. Chapter 7 and Chapter 13 are most commonly used by individuals.

In a Chapter 7 bankruptcy, the debtor’s assets are sold and any proceeds are used to repay creditors. The debtor is allowed to keep certain property, known as “exempt” property. What property counts as “exempt” is a matter of either state or federal law. With some important exceptions, debts will be discharged, even if there are no non-exempt assets. Recent changes to the bankruptcy laws mean that if a debtor’s income (including a spouse’s income) is above a certain amount, a Chapter 7 filing will be converted to a Chapter 13 filing.

Under a Chapter 13 bankruptcy, you will be required to follow through on a court-approved payment plan to repay your debts. You will be protected from creditors while the plan is in effect, and how much you have to repay will depend in part on how much of your assets are exempt.

For either kind of bankruptcy, there are limits on how frequently you can file.

Because bankruptcy can damage your credit and have other serious consequences, it is very important to fully understand the advantages and disadvantages of filing. For more information, consult with a reputable bankruptcy attorney.

2) How can marriage or having been married impact a bankruptcy filing?

Married couples can file a joint petition for bankruptcy. This means that your combined property and debts are part of the same bankruptcy, and the debts of both spouses are discharged. Filing a joint bankruptcy rather than two individual bankruptcies may result in financial savings, since filing bankruptcy requires paying a filing fee to the court, and may also involve paying for a lawyer. It also may simply be more convenient to proceed in a single filing, rather than two bankruptcy filings.

There are other ways that marriage matters in a bankruptcy filing. If you are married, your spouse’s income will be included in determining whether you can file for Chapter 7 bankruptcy. And if you were married and get divorced, debts owed for “domestic support obligations” (such as alimony, maintenance or support) are non-dischargeable and get priority in bankruptcy, which means they will get paid off first if there are assets to pay them.

While it may make sense for a married couple to file jointly in many cases, sometimes, you or your spouse might be better off filing alone. If only your spouse has significant debt, for example, it might make more sense for your spouse to file individually. If you have significant joint debt, on the other hand, filing only one petition could mean that creditors are still free to go after the other spouse. The rules differ somewhat in community property states. For more information on how to assess whether you are better off filing singly or jointly, consult with a reputable bankruptcy attorney.

3) Who will be recognized as married for bankruptcy filing purposes?

The federal bankruptcy courts administer bankruptcy proceedings. These are governed by the Bankruptcy Code, but state law may determine which assets are part of the bankruptcy estate, and which are “exempt” (which means you get to keep them). The bankruptcy law says that which state’s law applies to determine your exemptions depends on how long you have lived in the state before you file for bankruptcy.

If you live in a state that respects your marriage: Now that DOMA has been overturned, married same-sex couples living in states that respect their marriages will be considered married for bankruptcy purposes.
If you always lived in a state that doesn’t respect your marriage: There is no federal statute or regulation that addresses how the bankruptcy courts are to determine whether a marriage is valid. You may still be recognized as married for bankruptcy purposes, although it is not entirely clear how state laws relating to exemptions will apply to joint filings by married same-sex couples. This may take some time to sort out. In our mobile society, it makes sense for the federal government to recognize all marriages that were valid where entered. We are working to ensure that the federal government respects married couples wherever possible. If you encounter problems, contact one of the legal organizations listed below.
If you married and lived in a state that respected your marriage but then moved to a state that does not respect your marriage: There is no federal statute or regulation that addresses how the bankruptcy courts are to determine whether a marriage is valid. You may be recognized as married for bankruptcy purposes, and depending on when you moved, the law of your former home state might apply to determine your exemptions. Again, it may take some time for the bankruptcy courts to sort out how they will handle joint filings by married couples in states that do not respect marriages of same-sex couples. If you encounter problems, contact one of the legal organizations listed below.

4) How can I find out more about how bankruptcy works, and how to file?

One place to start is this website from the federal courts, which administer bankruptcies:

http://www.uscourts.gov/FederalCourts/Bankruptcy/BankruptcyBasics.aspx

For more information, see:

http://consumer.abi.org/consumers

For information about how to file, see:

http://www.uscourts.gov/FormsAndFees/Forms/BankruptcyForms.aspx

Contact: