Protecting LGBT Elders' Benefits in a Post-DOMA World

By Redman, Daniel; McIntyre, Gerald A. et al. | Aging Today, November/December 2011 | Go to article overview
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Protecting LGBT Elders' Benefits in a Post-DOMA World

Redman, Daniel, McIntyre, Gerald A., Unruh, John R., Aging Today

For lesbian, gay, bisexual and transgender (LGBT) elders with same-sex partners, the denial of federal spousal benefits can have devastating financial consequences. The Defense of Marriage Act (DOMA), passed in 1996, currently bars same-sex couples from accessing benefits they would be entitled to receive if they were in opposite-sex marriages. But several legal challenges are progressing through the courts, and many experts believe DOMA could fall within the next few years.

We urge LGBT elders who are otherwise eligible for these benefits to apply for them now. While LGBT people with same-sex partners who apply for these benefits will almost certainly face initial denial because of DOMA, people should apply now to preserve their right to receive maximum retroactive benefits. If elders instead wait to apply after DOMA is overturned by the Supreme Court, they will be eligible only to receive benefits based on that later application date. If DOMA is repealed by Congress-and the Supreme Court does not rule on its constitutionality-then this type of retroactive benefit probably will not be available.

Benefit Details

The benefits affected include the following * Social Security spousal benefit. If one spouse in a couple earns significantly more than the other, the lower-earning spouse can receive a benefit equal to half of the higher-earning spouse's benefit. To qualify, the spouse applying for the benefit must be currently eligible for Social Security; the couple must have been married at least a year (with some exceptions); and the marriage must be recognized in the couple's state of residence. While the spousal benefit is very important to some married couples, only a small number of couples are eligible because their incomes must vary substantially. In contrast to the survivor benefit (described below) this benefit is available to a couple while both partners are still alive.

* Social Security survivor benefit. This benefit permits a lower-earning surviving spouse, after her partner's death, to receive her deceased partner's entire Social Security benefit in place of her own. To qualify, the spouses must have been married for at least nine consecutive months before the partner's death (with some exceptions) and the couple's state of residence must have recognized the marriage.

* Veterans' benefits. Dependency and Indemnity Compensation are benefits paid to the survivors of veterans who die or become disabled in service. Benefits upon death of a veteran are paid to the "next of kin," who is often the spouse. Plus, most veterans receiving pension or disability compensation benefits can receive an additional modest monthly amount if they are married and claim their spouse as a dependent.

The following example illustrates how same-sex couples can act to protect their rights to retroactive federal benefits. Abby and Beth are same-sex partners, and they are taking steps to ensure access to retroactive benefits if DOMA is overturned by the courts. Abby is 67 and Beth is 68. Together for more than 30 years, as soon as California began granting marriage licenses in 2008, they married. Abby was the primary breadwinner, and Beth worked part-time jobs that earned much less.

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