2013-07-12 / Columnists

Spotlight on Elderlaw

Big Changes For Same Sex Married Couples
By Nancy J. Brady, RN, Esq.

On June 26th, 2013, in a landmark ruling, the US Supreme Court declared a key provision of the Defense of Marriage Act (DOMA) unconstitutional. This decision results in same sex couples in many states being eligible for benefits which were previously available only to heterosexual married couples. This is a summary of some of the benefits that will now be available:

Federal employees and retirees can add married same sex partner to health coverage. There is a 60 day window to do so, ending August 26th, 2013.

Federal retirees have until June 26th, 2015 (two years from date of decision) to add same sex spouse (or if married during the two years) to federal pensions.

Same sex marrieds should review tax returns for the last three years to claim potential refunds (if beneficial) for partner health coverage deductions or to amend return for joint filing if it would result in less tax paid. IRS guidance will be provided in the near future.

Pension benefits- there will be open periods for pension adjustments for both private and public plans.

IRA- same sex spouses are now entitled to spousal rollover for IRA and tax deferred qualified plan benefits. All such accounts should be reviewed and beneficiary designations changed to use the word “spouse” for the partner spouse.

Social Security Retirement Benefits- all couples should review the SSA website and review spouse’s and any minor or disabled child’s entitlements.

For long term care- same sex marrieds are now entitled to the spousal eligibility rules for Medicaid benefits- in New York this has advantages for asset protection for married couples when one requires care, either at home or in a nursing facility.

Estate planning: Wills or Trusts should define the same sex married partners as “spouse.” Estate tax planning is now available to same sex marrieds. Married couples (who are US citizens) can leave up to any amount tax free to a spouse. Upon the death of the surviving spouse tax may be due depending on the value of the estate, any tax planning done in advance, and the law in place at the time of death of each of the spouses.

New York State also provides that a spouse cannot disinherit the surviving spouse, and this benefit is available to same sex spouses as well.

Not all states recognize same sex marriages, and the availability of some benefits in those states depends on where the couple was married, and where they resided when they began collecting benefits.

For those who may be entitled to enhanced benefits due to marital status, it will be important to watch for any information from the IRS, Social Security, or individual pensions.

This information is intended to be informational only, and is not intended as specific legal advice.

The attorneys can be reached at 1-718-945-7777 or 1-738-8500.

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