Veterans Benefits for Same-Sex Spouses Post-DOMA

The U.S. Supreme Court has ruled that the federal Defense of Marriage Act (DOMA) discriminates against same-sex couples and that the federal government must treat all married couples equally. This means that the Department of Veterans Affairs (VA) now must treat same-sex married couples the same as opposite-sex married couples when providing veterans benefits.

While legislation by Congress is still technically needed to change a law against providing veterans benefits to same-sex couples, the Obama administration has announced that it will no longer enforce this law, so veterans benefits are now available to same-sex couples -- depending on the state you live in. (The Windsor decision struck down federal discrimination against gay and lesbian married couples but still allows states to decide whether or not to permit same-sex couples to marry.) Below we'll discuss how what state you got married in and/or what state you live in now can affect your right to benefits.

When Will the VA Consider My Marriage Valid?

According to a federal statute, the VA considers a marriage valid if:

• the state where the couple lived when they married recognizes the marriage as legal, or
• the state where the couple lived when the veteran's right to benefits began recognizes the marriage as legal.

Under the statute, if you resided in Pennsylvania when you went to Massachusetts to get married, the VA will not consider you married. This is because, although same-sex marriage is recognized in Massachusetts, it is not permitted in the resident state of Pennsylvania. However, if you later moved to Massachusetts and were living in Massachusetts at the time you became entitled to veterans benefits, the VA will consider your marriage valid.

Likewise, if you lived in Massachusetts when you got married but later moved to Pennsylvania, you will be considered married by the VA, even if your entitlement to VA benefits arose after the move.

Here are the situations where the VA will recognize your marriage as valid:

• You lived in a state that recognizes same-sex marriage at the time you got married, and you continue to live in a state that recognizes same-sex marriage.
• You lived in a state that recognizes same-sex marriage at the time that you married but later moved to another state that does not recognize same sex marriage when your benefits took effect. You are considered married by the VA because when you married you lived in a recognition state.
• When you married, you lived in a state that didn't recognize same-sex marriage, so you travelled to another state to get married. You later moved to another state that does recognize same-sex marriage, and while living there, became eligible for VA benefits. You are considered married by the VA even though you didn't live in a recognition state when you married, because you did live in a recognition state when your eligibility for VA benefits arose.

When the VA Will Not Recognize Your Marriage as Valid

The VA will probably not recognize your marriage as valid if you lived in state that didn't recognize same-sex marriage and travelled to another state to get married, and you still live in a state that does not recognize your marriage.

If Congress or a federal court expands the VA's definition of marriage to include any marriage taking place in a state that recognizes same-sex marriage, benefits will become available more equally to couples throughout the nation.

What Types of Benefits Are Available to Veterans?

There are two general types of benefits available to veterans:

• veterans benefits available through the Department of Veterans Affairs (VA), and
• military retirement benefits available through the Department of Defense (DOD)

This article addresses that veterans benefits that may now be available to you and your spouse if the VA considers your marriage to be valid. (Also see Nolo's article on military spousal benefits post-DOMA.)

What Benefits Are Available to My Spouse?

If the VA recognizes your marriage as valid, your spouse, or your surviving spouse, may be eligible for a variety of VA benefits.

Educational Benefits

Dependents' Educational Assistance Program

Educational benefits may be available to your spouse if the VA has deemed you permanently and totally disabled due to either permanent unemployability resulting from a service-connected disability or a 100% service-connected disability compensation rating that is permanent.

If eligible, the VA's Dependents' Educational Assistance program covers up to three years and nine months worth of education benefits for your spouse. To apply, your spouse will need to complete the Dependents' Application for VA Education Benefits and submit it to the VA Regional Office in the state where the school is located. If your spouse is already enrolled in school, an Enrollment Certification form will also have to be submitted.

Post-9/11 GI Bill

Those still on active duty can, if eligible, transfer their unused Post-9/11 educational benefits to their spouse for use during or after the service member's tour of duty. This transfer must occur through the online system milConnect. For a helpful FAQ on eligibility and the transfer process, see the milConnect website.

Health Care Benefits

Health care benefits through the VA program CHAMPVA are available to your spouse if you are permanently and totally disabled due to unemployability or a service-connected disability. Visit the VA website to learn how to apply for health care and read the CHAMPVA Handbook to learn more about the available benefits.

Cash Survivor Benefits

If you are a surviving spouse, you may be eligible for a monthly cash benefit from the VA. There are two types of survivor cash benefits, dependency and indemnity compensation (DIC) and death pension. You can receive only one of these benefits, not both.

Burial Benefits

Burial and memorial benefits are available to surviving spouses of service members who die while serving on active duty or after release from duty. These benefits include reimbursement for burial expenses, burial in a national cemetery, and bereavement counseling. For more information, including how to apply for these benefits, see Nolo's veterans burial benefits article.

Home Loan Benefits

Surviving spouses of veterans may be eligible to use the VA's home loan guarantee program to get a mortgage without a down payment or private mortgage insurance (PMI). For more information about eligibility and how to apply, read Nolo's article on the home loan program.

How Will My Existing Benefits be Impacted?

In some cases, veterans may actually have a reduction or loss of certain benefits as a result of this change in the law. To fully understand how your rights to any veterans benefits may be impacted, it is advisable to consult with a veterans benefits attorney, particularly if you are not yet married but are considering getting married in an effort to obtain more veterans benefits.

Service-Connected Disability Compensation

Veterans currently receiving service-connected disability compensation will likely be eligible for an increase in the monthly cash benefit for their same-sex spouse. This is due to the fact that monthly benefits are determined based on the number of dependents, including a spouse, that a veteran has. It is not yet clear what the application process for spousal increases will be for those who are currently receiving compensation. For information, contact your VA regional office.

Pension

Veterans currently receiving a VA pension should consult with an attorney, because marital status may negatively their eligibility for this benefit. This is because eligibility for a VA pension is based in part on having a low income, and a spouse's income gets included in the calculation.