Supreme Court Decision on Same-Sex Marriage Impacts LGBT Elders

Last month, the U. S. Supreme Court ruled that section 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional. Enacted by both houses of Congress with large majorities and signed into law by President Clinton in 1996, DOMA’s section 3 defines “marriage” as “only a legal union between one man and one woman as husband and wife” and the word “spouse” refers “only to a person of the opposite sex who is a husband or a wife.”

According to the Wikipedia entry on DOMA, in 1997 the U.S. General Accounting Office identified over a thousand federal statutory provisions in which benefits, privileges, and rights are conferred or contingent upon marital status.

These include Social Security, housing, food stamps, veteran's benefits, pensions and survivor's benefits, taxes on income, estates, and property, and benefits due to federal employees.

The Supreme Court case, United States v. Windsor, was a federal estate tax case in which the decedent's estate sought an unlimited marital deduction for the decedent's bequest to her same-sex spouse. In upholding the estate's right to the deduction, the Supreme Court declared DOMA "a deprivation of the liberty of the person protected by the Fifth Amendment [to the United States Constitution]."

Two days later, the U.S. Office of Personnel Management (OPM) issued a Memorandum detailing the immediate effect the high court's decision will have on benefits that will be extended to federal employees who have legally married a spouse of the same sex.

"OPM will be issuing additional information covering a broad range of issues," said Acting Director Elaine Kaplan, "but at this time OPM can offer guidance regarding specific employee benefits."

These include insurance under the FEHB plan, life insurance under FEGLI, long-term care insurance under FLTCIP, and retiree benefits.

As to the latter two federal plans

  • Same-sex spouses of employees will have 60 days from June 26, 2013, to apply for FLTCIP coverage with abbreviated underwriting; and
  • All retirees who are in legal same-sex marriages will have two years from the date of the Supreme Court’s decision (that is, June 26, 2015) to inform OPM that they have a legal marriage that now qualifies for recognition and elect any changes to their retirement benefits based on their recognized marital status.

Meanwhile, the U.S. Centers for Medicare & Medicaid Services released an official guidance to State Survey Agency Directors titled "Reminder: Access and Visitation Rights in Long Term Care (LTC) Facilities." This Guidance delineates the rights of LTC residents to receive family and non-family visitors.

Applicable to all LTC facilities that receive Medicare and Medicaid funding, including nursing facilities and hospices, LTC facilities "must ensure that all individuals seeking to visit a resident be given full and equal visitation privileges, consistent with the preferences the resident has expressed concerning visitors, and within the reasonable restrictions that ensure the safety of residents. Residents must be notified of their rights to have visitors on a 24-hour basis, who could include, but are not limited to, spouses (including same-sex spouses), domestic partners (including same-sex domestic partners), other family members, or friends."

The guidance is effective immediately.

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