Federal Marriage Benefits Denied to Same-Sex Couples

Gay and lesbian same-sex couples, whether married or not, are denied a whole host of benefits that the federal government provides to heterosexual married couples. There are over one thousand federal laws in which marriage status is a factor. These laws confer rights, protections, and benefits to married couples. Partners in same-sex couples cannot receive these important benefits -- from Social Security survivor benefits to federal tax benefits to federal employee health and retirement benefits.

Although a few states now allow gay and lesbian couples to marry, the majority of states still don't recognize marriages between partners of the same sex. Some, like California, allow same-sex couples to register as domestic partners. For purposes of most federal laws, these distinctions make no difference. Gay or lesbian same-sex couples, whether unmarried, married, or registered as domestic partners, are not permitted to enjoy the federal marriage benefits provided to heterosexual married couples.

Here are some of the federal benefits that same-sex couples cannot receive.

Social Security Benefits

Married heterosexual couples get a big financial boost from certain Social Security benefit programs that do not apply to same-sex couples. For some gay and lesbian partners, the denial of these benefits can mean spending later years in poverty.

Spousal survivor benefit. A surviving spouse of a worker entitled to Social Security retirement or disability benefits may be entitled to receive retirement benefits based on the deceased spouse's earning record.

Spousal retirement benefit. For retired married couples, a person whose calculated Social Security benefit is lower than that of his spouse may take half of his spouse's higher benefit, rather than receive the amount calculated from his own earnings.

Lump-sum death benefit. A surviving spouse gets $255 from the federal government to help pay for funeral arrangements.

To learn more about Social Security benefits, see Nolo's article Social Security Benefits: Retirement, Disability, Dependents, and Survivors.

Tax Benefits

Same-sex gay and lesbian couples cannot take advantage of federal tax benefits conferred upon married heterosexual couples.

Filing joint income tax returns with the IRS. Filing a joint return offers advantages over separate returns. Many same-sex couples lose thousands of dollars per year because they have to file separate tax returns with the IRS.

Creating a "family partnership." This federal tax law allows couples to divide business income among family members, again resulting in big tax savings.

Estate Tax and Estate Planning Benefits

Same-sex married couples cannot take advantage of a myriad of estate planning benefits available to married couples of the same sex.

Estate and gift tax exemption. Federal law exempts a certain amount of money from federal estate taxes and federal gift taxes for all property left to a surviving spouse (currently the exemption is $3.5 million). The surviving spouse does not pay taxes on any amount she receives from her deceased spouse that's under the exemption limit.

Estate Tax "Portability." Married couples can combine their personal estate tax exemptions. This means that the second spouse to die can leave property worth up to $10 million free from federal estate tax. Gay or lesbian couples do not get the "portability," so that the second spouse to die can leave only $5 million tax-free.

life estate trusts. Heterosexual married couples can create life estate trusts, including QTIP trusts and QDOT trusts, which provide distinct tax advantages upon the death of one spouse. For example, the QTIP trust allows surviving spouses to use trust property tax-free in certain circumstances. The QDOT trust allows a non-U.S. citizen surviving spouses to postpone paying any estate taxes above the exemption amount.

Veteran and Military Benefits

The heterosexual spouses of deceased veterans are entitled to a myriad of benefits, including health care, death pensions, educational assistance, home loan guarantees, vocational training, and bereavement counseling.

Spouses of living military personnel may be eligible for health care, family separation pay, and relocation assistance, among many other benefits. For more information, see the Veteran Benefit Administration website. Same-sex spouses are not entitled to these services and benefits.

Federal Employment Benefits

More than 22 million Americans are employed by the federal government. Many of the employment benefits that the federal government provides to its employees and their families are tied to marriage status. These benefits, which are part of the employee's compensation package, are denied to gay and lesbian employees. Examples of a few of these benefits include:

• health insurance for spouses, and
• wages, worker's compensation, health insurance, and retirement plan benefits for the surviving spouse of a deceased federal worker.

In June, 2009, President Obama signed the Presidential memorandum on Federal Benefits and Non-Discrimination. The memorandum extends several employment benefits to gay and lesbian federal employees, including:

• the right to use sick time to care for a same-sex spouse or partner, or a non-biological, non-adopted child
• the right to add a partner to a long-term care insurance program, and
• for partners of Foreign Service employees, the right to use medical facilities at posts abroad, be evacuated for medical reasons from posts abroad, and be included in family size for housing allocations.

Immigration Benefits

Many immigration benefits are tied to marital status. For example, a non-U.S. citizen may obtain legal residency, and later citizenship status, when married to a U.S. citizen. Non-U.S. citizens who are in same-sex marriages or partnerships are not entitled to this benefit. This is true even if the couple has a valid marriage certificate from a country that allows same-sex marriages.

For information on protecting your same-sex relationship under the law, including how to leave property to one another, make health care decisions for each other, and take care of finances, get Nolo's A Legal Guide for Lesbian & Gay Couples, by Denis Clifford, Frederick Hertz, and Emily Doskow.