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Marriage Equality

On June 26, 2013, in the case of United States v. Windsor, the Supreme Court overturned Section 3 of the Defense of Marriage Act—paving the way for the federal government to recognize the marriages of same-sex couples.

What does this mean? Same-sex couples who were married in a state that recognizes their union now have federal recognition—if a couple has a valid marriage certificate, the marriage is recognized. These states currently include Connecticut, Delaware (as of July 1, 2013), Iowa, Massachusetts, Maine, Maryland, Minnesota (as of August 1, 2013), New Hampshire, New York, Rhode Island (as of August 1, 2013), Vermont and Washington, as well as the District of Columbia. The federal government will also recognize marriages that took place in a country where same-sex marriage is legal. The ruling has no effect on states where marriage equality has not passed or is banned. For a more detailed overview of what the DOMA ruling means, check out “Overview: the Supreme Court Ruling on the Defense of Marriage Act: What It Means” from Gay & Lesbian Advocates & Defenders (GLAD).

Legally married same-sex couples now have full access to the more than 1,100 rights, benefits and protections long available to heterosexual married couple, such as Social Security, Medicare, retiree health benefits and more. Many of these benefits are particularly important for the health and well-being of LGBT older people, who are generally less financially secure than American elders as whole, and more prone to social isolation and poor mental and physical health.

Now that DOMA has been overturned, there are resources to help you understand how this affects your benefits. Here is a list—please check back; this page will be updated as other guides are released.

What about states without marriage equality? In these states, same-sex couples are still denied federal benefits. This has a substantial impact on LGBT elders—preventing them from fully accessing programs and protections such as:

Social Security. Social Security is the single most important financial safety net program for older adults and makes the difference between poverty and a living-wage retirement for a significant portion of older Americans. Almost all elder households (89 percent) receive Social Security, and almost a third of single retirees receive income only from Social Security.  Same-sex couples in states without marriage equality cannot receive Social Security spousal, survivor and death benefits. The lack of survivor benefits in Social Security can cost a same-sex widow or widower up to $30,156 per year in lost income, according to Social Security Administration estimates.

Family and Medical Leave Act. The Family and Medical Leave Act (FMLA) entitles eligible employees to take up to 12 weeks of unpaid leave for certain family and medical reasons without fear of the employee losing his or her job. However, in states without marriage equality, this protection is denied to employees who need to care for an ailing same-sex spouse. An employee who is not guaranteed the protections of FMLA leave to provide care to his or her same-sex spouse may not be able to afford appropriate medical care and may be at risk of losing his or her job if the employee decides to care for the spouse. Alternatively, the ailing spouse may have to forgo appropriate medical care in order to protect the working spouse’s employment. This is not a choice that heterosexual couples have to face if they need to care for an ailing spouse.

Retiree Health Benefits.Retired married heterosexual couples receive tangible health and survivorship benefits that are unavailable to same-sex couples in states without marriage equality. For example, where a retiree benefit plan provides that health or survivorship benefits are payable to an insured’s “spouse,” DOMA prevents same-sex spouses from accessing these valuable benefits that are otherwise available to similarly situated heterosexual spouses. The lack of health insurance for the same-sex spouse can impose a substantial household cost if the couple must purchase alternative health care coverage for the same-sex spouse.

Estate Taxes. While only a small fraction of all estates are affected by the estate tax, for those who are affected, DOMA treats the estates of same-sex couples differently from heterosexual couples. A surviving heterosexual spouse is allowed to inherit all of the deceased spouse's assets without incurring any estate tax liability. However, a same-sex spouse must pay taxes on any inheritance over the federal exemption limit. A 2009 report by the Williams Institute estimated that same-sex couples affected by the federal estate tax would lose an average of $1.1 million per couple in 2011 due to the inequity caused by DOMA.

To learn more about marriage equality and LGBT older adults, please contact Aaron Tax, Director of Federal Government Relations, 202-640-2705 or at

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