Military Benefits for Same-Sex Spouses Post-DOMA

In June 2013, the United States Supreme Court ruled in United States v. Windsor 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 Defense (DOD) must treat same-sex married couples the same as opposite-sex married couples when providing military retirement benefits.

It was thought that new legislation by Congress might be required to effect these changes and make benefits accessible, but the Pentagon announced on August 14, 2013, that benefits for same-sex spouses would be available to those who can show a valid marriage license.

How Does the DOD Define a Military Spouse?

By statute, the spouse of someone serving in the military, Guard, or reserves is defined as a husband or wife. Ordinarily, new legislation would be required by Congress to change this, even though the Windsor decision says the federal government must treat same-sex spouses equally. However, Secretary of Defense Leon Panetta issued a memo stating that if the Defense of Marriage Act no longer applies to the DOD, the Department of Defense will interpret all words such as "spouse" and "marriage" as applying equally to gays and lesbians. Further, he stated this would result in full military benefits for same-sex couples.

The Pentagon has clarified that any couple who was legally married in a state that permits same-sex marriage is now eligible for military spousal benefits, regardless of where the service member resides. New rules will be released soon offering service members special leave so that they can get married in one of the 15 states where same-sex marriage is legal.

Providing a marriage certificate should be all that is required to prove you are married.

Marriages in Other Countries

If you married a citizen of another country while serving abroad, the military will consider your marriage valid if you sought and obtained pre-approval of the marriage from the military for benefits purposes. If you did not seek pre-approval, you need to ask your branch of the service to issue a "recognition of marriage" certificate in order to be eligible for same-sex benefits.

If you enter into a marriage solely for the purpose of obtaining military benefits, you should be aware that the military has a history of prosecuting fraud of this nature and requiring repayment of any benefits issued.

What Happens if I Move?

If you move, your marriage will be considered valid, even if you move to a state that doesn't recognize same-sex marriage or live overseas. It also shouldn't matter if you lived in a state that didn't recognize lesbian and gay marriage and travelled to another state to get married. The military decides a marriage is valid if it was legal in the state where it took place.

How Can I Get Spousal Benefits?

All military benefits, including spousal benefits, require enrollment in the Defense Enrollment Eligibility Reporting System (DEERS). To add yourself (or your spouse) into DEERS, you will need to visit an ID Card office and bring your marriage certificate with you. If you do not have a marriage certificate because you have a common law marriage, you will need to request a determination from a Staff Judge Advocate that your marriage is valid according to state law.

Obligation to Report Same-Sex Spouse to DOD

Under ordinary circumstances, service members are required to report any changes in their dependents within 30 days. However, while DOMA was law, there was no duty to report same-sex marriages because the DOD wasn't permitted to recognize these marriages for benefits purposes. It is now advisable to report your spouse as a dependent as quickly as possible, even though at present there is no exact deadline for doing so.

Benefits for You and Your Spouse After DOMA

In addition to military retirement and survivor (DIC and death pension) benefits, other benefits you and your spouse will be entitled to include:

• TRICARE medical plan
• military family leave
• spouse identification card
• Command-sponsored visa
• ability to receive joint duty assignments
• ability to move off base in order to live with your spouse
• housing allowance
• access to legal assistance, and
• access to all military facilities including recreation centers, bases, exchanges, and commissaries.

Rights Under Servicemembers Civil Relief Act (SCRA)

Spouses will now also be entitled to protections under the Servicemembers Civil Relief Act (SCRA) while the service member is on active duty. This is unrelated to, and does not require, DEERS enrollment. SCRA provides civil protections that create financial protections while a service member is on active duty. For more information, see Nolo's article on Servicemembers Civil Relief Act (SCRA).

What Will Happen With the Military Domestic Partnership Benefits Extension?

Previously, Defense Secretary Panetta arranged for all military benefits that were not blocked by DOMA to be made available to registered domestic partners of service members between August 31, 2013 and October 1, 2013. Under this provision, eligible same-sex partners of service members would have the right to register as a domestic partner and receive benefits, regardless of whether the domestic partnership is sanctioned by the state of residence.

Marriage benefits are much more extensive than the domestic partner benefits that were scheduled to be offered. It appears that benefits will no longer be extended to committed couples and that benefits will now be available only to married same-sex couples.

To fully understand how your rights to benefits may be impacted post-DOMA, it is advisable to consult with a veterans benefits attorney.