AFTER DOMA: UPDATES AND ANNOUNCEMENTS ABOUT FEDERAL BENEFITS

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1 AFTER DOMA: UPDATES AND ANNOUNCEMENTS ABOUT FEDERAL BENEFITS Below are recent announcements and updates from various federal programs on how the marriages of same-sex couples will be treated following the Supreme Court ruling overturning Section 3 of the Defense of Marriage Act (DOMA). Fact sheets with details on each program can be found at For assistance or specific questions, contact GLAD Answers at NOTE: If you think you may be eligible for a federal benefit, we urge you to apply soon as time limits may apply in certain cases. GENERAL INFORMATION o The benefits in the various federal programs only apply to married same-sex couples. Same-sex couples in a civil union or registered domestic partnership do not currently qualify, although Social Security is encouraging even these couples to apply for benefits if they feel that they are otherwise eligible. o Many federal programs only require that you are legally married (this is called the Place of Celebration (POC) rule), but some programs require that in addition to having legally married that your marriage be recognized by the state in which you reside (this is called the Place of Domicile (POD) rule). BANKRUPTCY No guidance has been issued. BENEFITS AND PROTECTIONS FOR CIVILIAN FEDERAL EMPLOYEES AND THEIR SPOUSES (POC RULE) o The Office of Personnel Management (OPM) has extended health insurance, life insurance, dental and vision insurance, long-term care insurance, retirement and flexible spending accounts to all same-sex spouses of federal employees and annuitants, regardless of where the couple lives. Retirees will have 2 years to elect changes to benefits based on now-recognized marital status. For more information see:

2 Memorandum for Heads of Executive Departments and Agencies from OPM Acting Director Elaine Kaplan 0 Benefits Administration Letter FEHB Program Carrier Letter FEDVIP Carrier Letter o OPM provided notice of a 2-year opportunity for annuitants who are legally married to a same-sex spouse to elect survivor annuities for their spouses regardless of where the couple lives. For more information see: Opportunities for Annuitants to Elect Survivor Annuity Benefits for Same-Sex Spouses o OPM extended Family Medical Leave Act (FMLA) coverage to same-sex spouses regardless of where the couple lives. For more information see: FMLA Coverage for Same-Sex Spouses 34 o Employees and annuitants in same-sex domestic partnerships who would marry but live in states that do not allow same-sex couples to marry may enroll the child of their same-sex domestic partner as a stepchild under FEHB and FEDVIP effective January 4, For more information see: Coverage of Children of Same-Sex Domestic Partners o Health care benefits are available to same-sex spouses of Tribal employees who participate in the Federal Employees Health Benefits (FEHB) program regardless of where the couple lives. For more information see: Tribal Benefits Administration Letter

3 o The Federal Retirement Thrift Investment Board (FRTIB) issued an interim final rule that it will use the Place Of Celebration (POC) to determine whether a participant is married. For more information see: Federal Retirement Thrift Investment Board Rule o The Office of Government Ethics (OGE) has issued guidance that ethical obligations such as financial disclosure and conflict of interest requirements will now apply to all legally married same-sex couples regardless of where the couple lives. For more information see: Office of Government Ethics Guidance the-supreme-court-s-decision-in-united-states-v--windsor-on-the- Executive-Branch-Ethics-Program/ FAMILY AND MEDICAL LEAVE ACT FOR NON-FEDERAL EMPLOYEES (POD RULE) o The Department of Labor (DOL) has stated that it will use the Place of Domicile (POD) to determine whether an employee can use FMLA leave to care for a samesex spouse. For more information see: FMLA Fact Sheet FEDERAL TAXES (POC RULE) o The Internal Revenue Service (IRS) has stated that legally married same-sex couples will be treated as married for all federal tax purposes regardless of where the couple resides. This means that there will no longer be federal taxes on spousal benefits provided by employers. Also, since the IRS has a policy of allowing the filing of amended income tax returns up to 3 years from the original due date, it may be beneficial for some couples to file amended returns as married. Married same-sex couples will no longer need to pay a gift or estate tax on transfers of property to a spouse. For more information see: Treasury and IRS Announcement Legal-Same-Sex-Marriages-Will-Be-Recognized-For-Federal-Tax-Purposes;-

4 Ruling-Provides-Certainty,-Benefits-and-Protections-Under-Federal-Tax- Law-for-Same-Sex-Married-Couples IRS Definition of Marriage Federal Tax FAQ For Married Same-Sex Couples Sex-Married-Couples o The IRS is providing guidance to employers about the recovery of FICA taxes collected on same-sex spousal benefits. For more information see: Procedures for Employers to FICA Tax Refunds o The IRS is providing guidance to employees and employers concerning cafeteria plans, FSAs and HSAs. For more information see: Guidance Concerning Cafeteria Plans, FSAs and HSAs o Same-sex married couples will be eligible for advanced payment of the premium tax credit and cost-sharing reductions under the Affordable Care Act regardless of where the couple resides. For more information see: Affordable Care Act Tax Implications Guidance/Downloads/marketplace-guidance-on-irs pdf o The IRS has made it clear that registered domestic partners and civil union couples will be treated as unmarried and will not be eligible for any of the benefits provided to married couples. For more information see: FAQ For Civil Union and Registered Domestic Partnership Couples Registered- Domestic-Partners-and-Individuals-in-Civil-Unions THE FREE APPLICATION FOR FEDERAL STUDENT AID (FAFSA) (POC RULE) o The Department of Education announced that the marriages of same-sex couple would be recognized for all federal student aid programs, including filing the FAFSA, regardless of where the couple resides. For more information see: Department of Education Announcement

5 Dear Colleague Letter IMMIGRATION (POC RULE) o The Department of Homeland Security and the Department of State are using the Place of Celebration (POC) in considering any marriage based visas and immigration benefits. This means that a U.S. citizen or permanent resident can sponsor a same-sex spouse for a green card, provided all the other requirements for doing so are met. Immigration is a complex process and GLAD strongly recommends that before getting married or applying for an immigration benefit that you consult with an experienced immigration attorney. For more information see: Immigration Benefits for Same-Sex Spouses Same-Sex Spouses and Visas MEDICAID o Medicaid is a collaboration of the states and the federal government. So although the Department of Health and Human Services is encouraging states to use the Place of Celebration (POC) to determine whether a couple is married, states that do not recognize the marriages of same-sex couples may use the Place of Domicile (POD) if they so choose. To further complicate this, in some cases Medicaid eligibility is determined by using the rules for Social Security Supplemental Security Income (SSI) eligibility, and so in these cases the marriage recognition rule that the Social Security Administration (SSA) determines for SSI eligibility will determine Medicaid eligibility. We are still waiting for the Social Security Administration to issue its guidance. For more information see: Medicaid and Same-Sex Married Couples MEDICARE SPOUSAL PROTECTIONS

6 o If a same-sex spouse has a Medicare Advantage plan, then that spouse must have access to equal coverage when it comes to care in a nursing home where the other spouse lives. For more information see: Medicare Advantage Plans and Nursing Homes Plans/HealthPlansGenInfo/Downloads/SNF_Benefits_Post_Windsor.pdf o Medicare claims for surviving same-sex spouses who live in marriage equality states are now being processed. For more information see: Survivor Benefits MILITARY SPOUSAL BENEFITS (POC) o The Department of Defense (DOD) is offering the same benefits to same-sex spouses and different-sex spouses, regardless of where the couple resides. The DOD is also granting leave for service members who live more than 100 miles from a place where they can legally marry to travel and get married. For Department of Defense Announcement Administrative Absence to Get Married o Same-sex married couples are eligible to participate in the Survivor Benefit Program (SBP), regardless of where they reside. Retirees have until June 25, 2014 to enroll their same-sex spouse. For more information see: Survivor Benefit Plan Program o The Federal Retirement Thrift Investment Board (FRTIB) issued an interim final rule that it will use the Place Of Celebration (POC) to determine whether a participant is married. For more information see: Federal Retirement Thrift Investment Board Rule o Although initially a small number of state National Guard units refused to offer benefits to same-sex spouses, all of them are now in compliance. For more information see:

7 All State National Guard Units Now Provide Same-Sex Spousal Benefits PRIVATE EMPLOYMENT ISSUES AND BENEFITS o The Department of Labor (DOL) has issued guidance that ERISA and HIPAA controlled benefits (these are federal laws that place certain requirements on employers), when offered to same-sex spouses of employees, must treat those spouses the same as different-sex spouses, regardless of where the couple resides. For more information see: Guidance on ERISA Controlled Employer Spousal Benefits SOCIAL SECURITY SPOUSAL AND FAMILY PROTECTIONS o Social Security first announced that it was processing some same-sex spousal retirement claims and has recently added that it also now processing some widow and widower claims, including Medicare claims, for those who were married to a spouse of the same sex. The new guidance applies to retired or surviving spouses if the worker was domiciled in a state that recognizes marriage equality and the marriage took place in the U.S. Similarly, Social Security is now processing claims for lump sum death benefits if the deceased worker was domiciled in a state that recognizes marriage equality. If a marriage was entered into in a foreign country, Social Security may process the claim but only after getting a legal opinion on the validity of the marriage. Social Security is continuing to hold several claims, including applications where: o The worker was domiciled in a non-recognition state at the time of application or the deceased worker was domiciled in a non-recognition state at the time of death; or o The marriage does not meet the duration requirement and the claimant alleges a prior non-marital legal relationship such as a civil union. Anyone who was or is married to a spouse of the same sex and thinks they may be eligible for a Social Security benefit, should apply immediately to preserve their rights to benefits. For more information see: Social Security Q&A for Same-Sex Couples

8 Instructions for Processing Claims of Same-Sex Couples Press Release about Survivor and Death Benefits Survivor Benefits Lump Sum Death Benefit SUPPLEMENTAL SECURITY INCOME FOR AGED, BLIND AND DISABLED (SSI) o The SSA has released guidance for processing SSI benefits for same-sex married couples who live in states where their marriage is recognized. For more information see: TEMPORARY ASSISTANCE FOR NEEDY FAMILIES (TANF) No guidance has been issued. VETERAN S SPOUSAL BENEFITS o The Attorney General has informed Congress that the Department of Justice (DOJ) will not be enforcing Title 38 which defines marriage as only between a man and a woman. However, the Veteran s Administration responded that it will continue to enforce Title 38 until it receives orders to stop. For more information see: Holder Letter to Boehner Letter from Department of Veterans Affairs About Title 38

9 FOR THE MOST RECENT INFORMATION AND TO GET ANSWERS TO ANY QUESTIONS, CONTACT GLAD Answers BY LIVE CHAT OR AT OR BY PHONE MONDAY-FRIDAY 1:30-4:30 PM AT GLAD (4523)