What Benefits Is My Same-Sex Spouse or Domestic Partner Entitled to?


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Due to a number of important Supreme Court decisions in the 21st century, married same-sex spouses are entitled to a number of benefits that were previously outside their reach. While domestic partners may be entitled to some benefits, married spouses are typically eligible for more benefits. Marriage is a factor in many federal benefits.

Social Security

Same-sex spouses are eligible for certain benefits from Social Security for which they had previously been historically barred from receiving. This includes the spousal survivor benefit. A surviving spouse of an employee who was entitled to Social Security benefits may be able to receive retirement benefits on the employee’s earning record. Additionally, a same-sex spouse can take half of his or her spouse’s higher benefit amount under Social Security instead of receiving the amount that is based on his or her own earnings. These benefits are available to spouses who were living in a state that recognized their marriage at the time that they applied for benefits. If a couple moves out of a jurisdiction that recognizes their marriage, the Social Security Administration will not check for eligibility again after awarding benefits. In order for a person to be eligible for Social Security benefits that are related to his or her marriage, there are certain time requirements. For example, a person must have been married for at least nine months to apply for benefits as a surviving spouse. To be eligible for benefits that are available during the other spouse’s lifetime, the couple must have been married for at least one year. However, if the couple was in a civil union and that union was later converted to a marriage, the couple’s length of marriage would be based on the amount of time that they had been together since the civil union.

Immigration Benefits

Immigration laws now recognize same-sex marriages as providing a basis for the application of legal residency and citizenship status.

Tax Benefits

One of the major Supreme Court cases that has affected the tax rights of same-sex spouses was based on estate taxes. Same-sex spouses are entitled to the same estate and gift tax exemptions that apply to different-sex spouses. Additionally, same-sex spouses can use portability to combine their exemptions together. The second spouse can leave property with a maximum amount equal to twice the individual rate without incurring estate taxes on these assets. Same-sex spouses can file a joint return and receive the advantages of filing married. They can also spread business income among family members to save on taxes.

If one or both of the spouses have children, additional tax benefits may stem from this situation. For example, if a same-sex registered domestic partner adopts the child of his or her partner, that individual may be eligible to receive an adoption credit for those expenses related to adopting the child. Additionally, if a state law exists that classifies a same-sex registered domestic partner as the stepparent of his or her partner’s child, additional tax benefits may be available due to this designation.

Family and Medical Leave Act

The Department of Labor states that it will extend this act to all eligible employees who have a same-sex spouse without regard to the state where the couple lives. The act pertains to larger employers who have employees who need to take up to 12 weeks of unpaid leave to care for a spouse, parent or child or the employee himself or herself. The act applies to those individuals who reside in states that recognize their marriage. The act can also apply to domestic partners if their relationship is recognized in the state under common law marriage principles.

Military Benefits

The spouses of military members who are currently alive may be eligible for health care benefits, relocation assistance and family separation pay. Spouses of deceased service members are eligible for health care benefits, educational assistance, certain home loans, vocational training and death pensions. Eligibility is based on language from Veterans Affairs. Benefits are available to spouses whose marriages were recognized by the state where they resided at the time of their marriage or where they were living when they filed a benefit claim.

Other Benefits

Same-sex spouses or domestic partners may be eligible for other benefits, based on state laws, employment contracts or other sources of laws. These may be employee benefits packages, intestacy benefits or other types of benefits. Anti-discrimination laws in states or municipalities may prohibit providing benefits to some groups and not to other similarly-situated groups.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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