LGBT Spouses are Now Eligible for Key Government Benefits

Since the Supreme Court issued its decision in United States v. Windsor  to strike down Section 3 of the federal Defense of Marriage Act (DOMA) in June, several federal agencies have revised their policies to bring them in line with the Windsor decision.

These are some of the notable changes that bring equality to couples who are in legally recognized same-sex marriages:

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Elder Law

  • The Department of Health and Human Services (HHS) released a statement on August 29 that LGBT spouses are now eligible for key Medicare benefits when it comes to care in a nursing home where their spouse lives.  Prior to this guidance, a beneficiary in a same-sex marriage enrolled in a Medicare Advantage plan did not have equal access to such coverage and, as a result, could have faced time away from his or her spouse or higher costs because of the way that marriage was defined for this purpose. Now, LGBT married couples enrolled in private Medicare Advantage plans (about 13 million people) are entitled to coverage for nursing-home residency in the same facility where their spouse resides.
  • The Internal Revenue Service (IRS) has ruled that same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes regardless of where they live when the file their tax returns. This means that the Treasury Department and IRS have adopted a “state of celebration” rule as opposed to a “state of residence” rule.  As a result, it is now possible for same-sex couples to be federally recognized as same-sex spouses even though their marriage may not be recognized in the state where they reside.  This ruling will likely result in numerous same-sex couples traveling to a jurisdiction solely to get married and obtain federal tax recognition of their marriage.  This ruling will now also require employers in all states —not just those states that currently recognize same-sex marriage—to allow same-sex couples to obtain spousal benefits under employee benefit programs.  The IRS intends to issue further guidance on the retroactive implications of this position.  Note that this new IRS ruling does not apply to registered domestic partners, civil unions, or other relationships recognized under state law but not classified as marriage under that state’s law.
  • The Social Security Administration (SSA) is now processing some retirement spouse claims for same-sex couples and paying benefits when due.  The new SSA rules will apply to all claims filed on or after the Windsor case ruling on June 26, or any claims that were pending final determination at the time of the ruling.  Unfortunately, for now payments will be limited to same-sex couples who are legally married and actually reside in one the 13 states (plus DC) that permit same-sex marriage. The IRS has always used a “place of residence” rule, but this could change as the SSA continues to examine its policies and procedures in light of the Windsor case. 

On a positive note though, the overall trend is toward a federal government that offers benefits to as expansive a set of same-sex married couples as possible.

Since laws are changing for the better for LGBT married couples, if you haven’t done so, now is the time to get started with planning for your future and for your loved ones! Read our recent blog post about why it is especially important for the LGBT community to plan ahead. We here at The Fairfax LGBT Law Firm of Evan H. Farr, P.C. have strategies in place to help LGBT couples. 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. Visit for more details, and call 703-691-1888 to make an appointment for a consultation.


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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.