LGBTQ Marriage Ruling Brings New Planning Choices

LGBTQ married couples can now celebrate another important victory in their fight for equal rights.  Yesterday, the Supreme Court ruled to let the appeals court rulings allowing same-sex marriage in five states stand, clearing the way for same-sex marriages in Indiana, Oklahoma, Utah, Virginia and Wisconsin.  Now, same-sex couples can marry in 24 states, along with the District of Columbia, up from 19. Within weeks, the decision could expand same-sex marriage to 30 states.

Virginia’s case began in Norfolk when newlyweds Tony London and Timothy Bostic were denied a marriage license last year. Virginia’s Northampton County, which claims to have the oldest continuous court records in the entire country, including countless marriage records dating to the early 1600s, could issue its first marriage license to a same-sex couple as soon as Monday.  According to Clerk of Court Traci Johnson, “I believe that love is hard to find, and if you have found it and it’s your choice, you should not miss an opportunity.” Same-sex marriage in the District of Columbia was legalized nearly five years ago — on December 18, 2009.

The recent Supreme Court ruling was preceded by a major milestone last year with the ruling in United States v. Windsor to strike down Section 3 of the federal Defense of Marriage Act (DOMA).  The United States v. Windsor ruling meant that legally married same-sex couples must be treated the same as heterosexual married couples under federal laws pertaining to income and estate taxes, pensions and the like.  The Windsor decision prompted several federal agencies to revise their policies to entitle married same-sex couples to federal benefits and tax advantages.

What Benefits Do Same-Sex Married Couples Qualify for Now?

Social Security Benefits

Married couples get a big financial boost from certain Social Security benefit programs that have not historically applied to LGBT couples.

Spousal survivor benefit: A surviving spouse of a worker entitled to Social Security retirement or disability benefits may be entitled to receive retirement benefits based on the deceased spouse’s earning record.

Spousal retirement benefit: For retired married couples, a person whose calculated Social Security benefit is lower than that of his or her spouse may take half of his or her spouse’s higher benefit, rather than receive the amount calculated from his or her own earnings.

Lump-sum death benefit: A surviving spouse gets $255 from the federal government to help pay for funeral arrangements.

Estate Tax and Estate Planning Benefits

Estate and gift tax exemption:  Federal law exempts a certain amount of money from federal estate taxes and federal gift taxes for all property left to a surviving spouse (currently the exemption is $5,340,000). The surviving spouse does not pay taxes on any amount he or she receives from the deceased spouse that’s under the exemption limit.

Estate Tax “Portability:” Married couples can combine their personal estate tax exemptions. This means that the second spouse to die can leave property worth up to $10,680,000 free from federal estate tax. Unmarried couples do not get the “portability,” so that the second partner in a relationship to die can leave only $5,340,000 tax-free.

Veteran and Military Benefits

Spouses of deceased veterans are entitled to numerous benefits, including health care, death pensions, educational assistance, home loan guarantees, vocational training, and bereavement counseling.

Spouses of living military personnel may be eligible for health care, family separation pay, and relocation assistance, among many other benefits. Same-sex married spouses should also be entitled to these services and benefits.

Tax Benefits

Filing joint income tax returns with the IRS: Filing a joint return may offer advantages over separate returns. Many unmarried couples lose thousands of dollars per year because they have to file separate tax returns with the IRS.

Federal Employee Benefits

Last summer, the Office of Personnel Management announced that federal employees in LGBT marriages could apply for health, dental, long-term care, life and retirement benefits.


The Department of Health and Human Services said that legally married LGBT seniors on Medicare would be eligible for equal benefits and joint placement in nursing homes.


The Department of Homeland Security will treat LGBT spouses equally for the purposes of obtaining a green card if the spouse is a foreign national. And the IRS has begun treating same-sex marriages equally for tax-filing purposes.

While laws are changing to promote greater equality for LGBT seniors, whether you are gay or straight, if you haven’t done so, now is the time to get started with planning for your future and for your loved ones! We here at the Fairfax, Fredericksburg and Washington, DC LGBT Law Firm of Evan H. Farr, P.C. have strategies in place to help LGBT couples, whether married or not. With advance planning, each person, regardless of sexual orientation, can retain the benefit of the money, income and assets it has taken a lifetime to accumulate. Please call us at 703-691-1888 in Fairfax, 540-479-1435 in Fredericksburg, or 202-587-2797 in Washington, DC, to make an appointment for a consultation.

Print This Page
About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.