Same-Sex Marriage – Where You Live May Matter

 “Same-Sex Marriage – Where you live may matter”

I recently attended a panel discussion sponsored by NAELA (National Academy of Elder Law Attorneys), which was followed up in an article this month by Jan G. Zager, Esq., “The DOMA Decision and What It Means to Your Clients” in NAELA News, Volume 25, Issue 4, August/September 2013. In a nutshell, if you are a legally married same-sex couple, where you live may matter to ensure application of some federal benefits. I’ve outlined what the panel talked about. Here’s what you need to know:  it’s going to be a little unclear for a while….!

State vs. Federal Powers  At the root of the problem is that marriage law is historically the domain of the individual states. And, through the full faith and credit clause, states are expected to recognize other states’ marriage laws, allowing everyone recognition of their legal marriages.  DOMA (The Defense of Marriage Act, which defines marriage as between one man and one woman), on the other hand, is the federal government getting involved in the subject. The Supreme Court has now ruled that Section 3 of DOMA is unconstitutional because it violates the equal protection clause. This would appear to create equal application of benefits for all legally married couples. But, the Court did not strike down Section 2, which allows states to deny recognition of same-sex marriages from other states. That puts a number of people in an awkward place, to say the least, and it’s causing a good deal of confusion and a lot of guessing on how it will all shake out.  It potentially creates a situation that if you get married legally in one state, but want to later move to another state that does not recognize your marriage as legal, you could potentially be denied access to certain federal benefits.

Benefit Application Unclear  The panel mentioned that the Social Security Administration has “frozen” the processing of same-sex couples’ claims in order to address them case-by-case.  As it stands now, the state law of where you reside tells you if your marriage is legally recognized or not, and application of federal benefits is affected by that recognition or lack thereof. So, where you got married matters (state of celebration), and if you got married in one of the 13 states where that is legal and you still live there, it appears that you may be in the ideal situation (both as far as the state and the federal governments view your marriage, and benefits associated with that marriage). But, where you live now (state of application) also may matter if you want the federal government to continue to recognize your marriage with regard to federal benefits.  It remains unclear for the following:

• Active Duty Military, seems to be humming right along, recognizing same-sex couples no matter where they live now, as long as they were married legally in the state where their marriage was celebrated.
• Veterans’ Benefits, however, seem unclear. Not sure whether there will be consideration of the state where the marriage took place, or the state where the benefits accrued.
• SSD and SSI also seem unclear. It appears that where you lived when you applied for the benefits may be what allows you to continue those benefits, even if you move. But, it appears you may not be able to move to a state that does not recognize same-sex marriage, apply then, and expect to receive them. Furthermore, for a legally married couple moving to a state that does not recognize their marriage, it is unclear whether SSI approval will include the partner’s income or not.
• Medicaid is tied to SSI approval. It becomes an issue of potentially imposing support liability.
• Estate Planning also may be affected. The panelists identified a number of potential issues to keep an eye on – federal employees, health care coverage, disclaimer trusts, survivor benefits, spousal rollovers of IRA and other plans, Social Security benefits, long-term care planning, Affordable Care Act premiums and subsidies, documentation to reflect legal marriage.

So, stay tuned.  It’s changing fast. Ask your Estate Planner for advice on how to proceed or prepare for what’s next for you and your family.

This blog is written by Bridget-Michaele Reischl, Attorney

DECORO LAW OFFICE, PLLC

www.decorolaw.com

ALL READERS:  This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader.  It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.

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