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ElderLaw News

ElderLaw News is a weekly e-newsletter that brings you reports of legal developments and other trends of vital interest to seniors and their advocates. This newsletter is brought to you by The Estate Planning & Elder Law Firm, P.C., William S. Fralin, Esq., President., William S. Fralin, Esq., President.

Windsor v. U.S. and the Defense of Marriage Act: What Does it Mean?

The Supreme Court of the United States made an historic ruling on June 26, 2013 in Windsor v. United States, striking down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional.

Originally enacted in 1996, DOMA contains three sections: Section 1 simply names the Act the “Defense of Marriage Act”; Section 2 provides that no state or territory shall be required to recognize a same-sex marriage which is recognized by another state or territory; and Section 3 defines the word “marriage” to mean “only a legal union between one man and one woman as husband and wife,” and the word “spouse” to refer only to “a person of the opposite sex who is a husband or a wife.”

In its June 26th ruling, the Supreme Court issued a 5-4 decision declaring Section 3 of DOMA to be unconstitutional “as a deprivation of the liberty of the person protected by the Fifth Amendment.” As a result of this ruling, the federal government’s definition of “marriage” has been expanded to include legal unions between couples of the same sex. Although the full effect of this ruling is yet to be seen, we can begin to speculate about its impact on numerous federal benefits and policies which affect The Estate Planning & Elder Law Firm’s clients. The following are what we believe will be the ultimate implications of this ruling, based on our preliminary research on this matter; over time, the implications will become more certain.

Social Security Benefits

In general, same-sex married couples will now be eligible for Social Security benefits that are available to spouses. Benefits are available when one spouse retires (Retirement Spousal Benefit), in the event of a disability (Disability Spousal Benefit), and when one spouse has passed away (Survivor’s Benefit). Previously available only to heterosexual married couples, the broadening of Social Security benefits to include a spouse of the same sex will result in more income to the spouse. A caveat, however: The laws of the state in which the couple resides at the time they apply for the benefit may determine whether or not the couple will be treated as “married,” because the SSA traditionally uses place of domicile to determine marital status. The SSA is in the process of working out what effect the Windsor ruling will have on these policies.


Each state has its own Medicaid program which is partially funded by the federal government. As a result of the ruling in Windsor v. United States, every state which recognizes marriages between same-sex couples will recognize such marriages for Medicaid purposes. States which do not recognize same-sex marriage will most likely not recognize the marriage for Medicaid purposes, although some states may provide hardship protections to a partner of a person receiving long-term care.

Military Benefits

Valid same-sex marriages will be recognized for all military benefits, regardless of where those individuals are stationed. This includes medical benefits (Tricare), housing, ID cards, military base privileges, post-9/11 education benefits, Service Connected Disability Compensation, Death Indemnity Compensation for survivors, joint duty assignments, burial in national cemeteries, etc.

Veterans’ Administration Benefits

So long as the couple was validly married in a state which permits same-sex marriage, or the state in which the couple resides when VA Benefits accrue permits same-sex marriage, same-sex married couples (or a widow(er)) should be able to collect VA Benefits which were previously available only to heterosexual married couples. A same-sex couple may not, however, receive VA Benefits if they are living in a state that does not recognize same-sex marriage. This issue will need to be resolved.

Federal Income Taxes

Couples in valid same-sex marriages should now be able to file income taxes identifying themselves as married. Filing status is generally determined on the last day of the year; therefore, if you are married on the last day of the year, you will identify yourself as “married” on your taxes for that year.

Federal Estate and Gift Taxes

Previously, if one member of a heterosexual marriage passed away without using his or her full estate tax exemption, portability permitted the remaining spouse to use the remaining amount of the exemption, thereby decreasing the total estate tax liability of both spouses. Now that the federal government recognizes same-sex marriages, portability will be available to individuals in valid same-sex marriages, resulting in estate tax savings. In addition, the federal estate and gift tax marital deductions which were previously available only to heterosexual married couples will now be available to spouses of the same sex.

These are just a few examples of what the implications of the Windsor ruling may be. As you can see, there is much to be determined in the wake of Windsor. In addition, although Section 3 of DOMA has been deemed unconstitutional, and the federal government will now recognize same-sex marriages, it is important to note that Section 2 still stands; therefore, a state which does not recognize same-sex marriage may continue to refuse to recognize a same-sex marriage sanctioned by another state, at least for the time being.

Disclaimer: This newsletter and the opinions and projections contained herein are not to be construed as legal advice. For a more in-depth analysis of what the Windsor ruling means for you, please contact an attorney.


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The Estate Planning & Elder Law Firm, P.C.

The Estate Planning & Elder Law Firm, P.C. is an elder law firm. We represent older persons, disabled persons, their families, and their advocates. The practice of elder law includes estate planning, estate and trust administration, powers of attorney, advance medical directives, titling of assets and designations of beneficiaries, guardianships, conservatorships, and public entitlements such as Medicaid, Medicare, Social Security, and SSI, disability planning, income tax planning and preparation, care management, and fiduciary services. For more information about The Estate Planning & Elder Law Firm, P.C., please visit our website at http://www.chroniccareadvocacy.com.

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