NOTE TO READERS: This article addresses the legal situation before the Supreme Court's June 2015 decision in Obergefell v. Hodges, which made same-sex marriage legal in all 50 states.
On June 26, 2013, the U.S. Supreme Court struck down the section of DOMA (federal Defense of Marriage Act) that defined marriage as a "union between a man and a woman." (United States v. Windsor, 570 U.S. 744 (2013).) The Supreme Court ruled that the section of DOMA defining marriage as between a man and a woman violates the Equal Protection Clause and is therefore unconstitutional.
If you are in a valid same-sex marriage, you are now entitled to federal benefits under the Windsor decision. However, the rules for eligibility will vary by federal agency.
There are over one thousand federal laws in which marriage status is a factor. These laws confer rights, protections, and benefits to married couples -- from Social Security survivor benefits to federal tax benefits to federal employee health and retirement benefits.
Here are some of the federal benefits that same-sex married couples may now receive (subject to the specific federal agency's rule for determining eligibility).
Married couples get a big financial boost from certain Social Security benefit programs that have not historically applied to same-sex couples.
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 or her spouse may take half of his or her 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 the status of Social Security benefits for same-sex couples, see Nolo's blog post on post-DOMA Social Security benefits.
Same-sex married gay and lesbian couples can now take advantage of federal tax benefits. Here are just a few of the benefits they may now receive:
Filing joint income tax returns with the IRS. Filing a joint return may offer advantages over separate returns. Many unmarried 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
There are a myriad of estate planning benefits available to married couples.
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 $5 million). The surviving spouse does not pay taxes on any amount he or she receives from the 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. Unmarried couples do not get the "portability," so that the second partner in a relationship to die can leave only $5 million tax-free.
Life estate trusts. 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.
Spouses of deceased veterans are entitled to numerous 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 Nolo's articles on military benefits for same-sex couples and veterans benefits for same-sex couples. Now that DOMA has been overturned, same-sex married spouses should also be entitled to these services and 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 marital status. These benefits, which are part of the employee's compensation package, are denied to unmarried employees. Examples of a few of these benefits include:
Many immigration benefits are tied to marital status. For example, a non-U.S. citizen may obtain a nonimmigrant visa or permanent residence (a green card), and later citizenship status, when engaged or married to a U.S. citizen.
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.