Sunday, August 18, 2013

More details on "state of celebration" vs. "state of residence" question in post-DOMA federal benefits

Christ Johnson has a major update on information on the "state of celebration" vs "state of residence" issue in the post-DOMA world in four areas:  (1) Social Security (2) Federal income taxes (3) Veterans benefits (and some military benefits) (4) Family and Medical Leave Act (FMLA).  (It can also be called "place of celebration" and "place of residence".)
 
The link for the Aug. 13 story appears here in the Washington Blade.

It appears that right now Social Security is requiring that the couple have resided in a state that recognizes their marriage if one passes.  However Social Security encourages applications based on place of celebration and places them on "hold" for future administrative law resolution.

The IRS similarly believes that the law requires that it consider "place of residence" for eligibility for joint returns, but says it is still looking at the legal details more closely with DOJ and could make a policy change.

The VA says that the law still only spelled out partnership benefits for opposite-sex partners but awaits the post-DOMA litigation, McLaughlin v. Hagel.

The FMLA leave application seems open, but many employers will honro same-sex marriage claims anyway.  The problem is that FMLA provides only unpaid leave, and does not help a lot of couples much in practice.  It is available to take care of parents in a filial responsibility setting.  

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