On June 26, 2013, the U.S. Supreme Court issued its decision in United States v. Windsor and struck down Section 3 of DOMA (Federal Defense of Marriage Act), which defined marriage as a union between a man and a woman. This historic ruling marks a monumental step in the marriage equality movement.
The Windsor case involved Edith Windsor and Thea Spyer, who married in Canada in 2007, after being in a relationship for 40 years. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the federal estate tax exemption for surviving spouses, but was barred from doing so by Section 3 of DOMA. As a result, Windsor was forced to pay $363,053 in taxes on Spyer’s estate, which she would not have had to pay if she’d been Spyer’s husband. She argued that DOMA, which prevented her from being considered Spyer’s spouse for federal purposes, cost her $363,053.
In a 5-4 decision, with the majority opinion written by Justice Anthony Kennedy, the Supreme Court found that the section of DOMA defining marriage as between a man and a woman violates the Equal Protection Clause and is therefore unconstitutional. Under this ruling, same-sex married couples are considered legally married for federal purposes.
Just after this decision was issued, there was a lot of speculation regarding whether the federal government would recognize same-sex marriages based on the “place of celebration” – where the couple was married, or based on the “place of residence” – where the couple lives. Since the Windsor decision, many federal agencies have issued their own rulings to clarify how they will recognize same-sex marriages for the purposes of federal benefits. It's clear now that the rules of recognition do vary between federal agencies.
Place of Celebration or the "Married is Married" Rule
Many federal agencies, such as the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Office of Personnel & Management look to the place of celebration (where the marriage was performed) to determine whether same-sex married couples are eligible for benefits. If you're in a valid marriage, you will qualify for immigration status and federal employee benefits (if either of you works for the federal government), even if you live in a non-recognition state.
The same goes for the IRS and eligibility for federal tax benefits. In August 2013, the U.S. Department of Treasury ruled that all same-sex couples that are legally married in any U.S. state, the District of Columbia, a U.S. territory or a foreign country will be recognized as married under all federal tax provisions where marriage is a factor.
The Treasury Department further clarified that federal recognition for tax purposes applies whether a same-sex married couple lives in a jurisdiction that recognizes same-sex marriage (such as California) or a non-recognition jurisdiction (such as Texas). But the decision does not apply to same-sex couples in domestic partnerships or civil unions.
Place of Domicile Rule
However, some federal agencies, such as the Social Security Administration, only recognize marriages that are valid in the place of domicile (where the couple lives) for the purposes of granting federal benefits. This means if you're in a same-sex marriage, but you live in a non-recognition state, you aren't eligible for Social Security benefits on your spouse's work record. If you live in one of the 17 jurisdictions that recognize same-sex marriage, you will qualify for benefits. This rule also applies to Medicaid and Supplemental Security Income, Medicare, Bankruptcy filings, and benefits under the Family Medical Leave Act.
If you are in a domestic partnership or civil union in any of the states that offer those relationship options, none of the benefits of marriage under federal law will apply to you, because the federal government does not recognize these same-sex relationships.
Some agencies, such as the Social Security Administration, will only recognize those married couples that live in one of the states that recognize same-sex marriage (or D.C.). Same-sex spouses that live in nonrecognition states will not qualify for social security benefits based on their spouses' work records. But other agencies, such as the IRS and the USCIS (formerly the INS) don't look to the place of domicile, they only look to see whether the same-sex couple is in a valid marriage to determine if they qualify for benefits. It doesn't matter if the couple later locates to a non-recognition state - they will still file federal tax returns just like heterosexual spouses do and qualify for immigration status, regardless of where they choose to live. This decision does not apply to same-sex couples in a civil union or those that are currently registered as domestic partners – couples must be legally married to qualify for federal benefits.
By: Lina Guillen, Attorney