On Wednesday, March 27, 2013, the Supreme Court of the United States heard over three hours of oral arguments to determine the constitutionality of the Defense of Marriage Act (DOMA), signed into law by President Bill Clinton, enacted on September 21, 1996. DOMA restricts same-sex couples from receiving federal marriage benefits. Moreover, DOMA does not require inter-state recognition of legalized marriages of same-sex couples. Thus, a couple of the same gender who is legally married in Massachusetts would not be recognized as married should they move to a state such as Georgia.
Had “Don’t Ask Don’t Tell” not been repealed, this discussion would be moot. But, since homosexuals can now serve in the military openly, the issue of striking down DOMA becomes even more important for both active duty military members as well as veterans.
Many advocate for the unconstitutionality of DOMA due to the discriminatory differences in taxes, employment benefits, wrongful death suits, and approximately 1,100 other federal benefits that are not available to same-sex couples. But for military individuals, the benefits of marriage go well beyond that. For active duty military, when both spouses are in the service, they are assigned to the same military institution. If they have children, then only one spouse is deployed at a time so the children will have one primary parent still at home. The military spouse is paid more when he or she is married. This is just the short list. Veterans who are or could receive service connected disability compensation or wartime pension would also benefit by DOMA being repealed, as would their spouses.
The Supreme Court is expected to have a decision about DOMA in June. Regardless of the outcome, it is noteworthy that the Secretary of Defense has already begun making strides to minimize the discrimination of same sex couples serving in the military. On February 11, 2013, a memorandum extending benefits to same-sex domestic partners of military members was issued in response to the repeal of “Don’t Ask Don’t Tell.” Twenty member-designated benefits and 22 additional benefits for same-sex domestic partners are slated to be in place no later than October 1, 2013. To read the entire memorandum, click here.
The ability for same-sex active duty military, as well as veterans, to be legally recognized as married, will open the door for estate planning opportunities, long-term care opportunities, and asset protection strategies. Becoming aware of and staying abreast of the changes in this area of the law will set your law firm apart from others who are still focusing on the “permanent tax” law.
Victoria L. Collier, Certified Elder Law Attorney, Fellow of the National Academy of Elder Law Attorneys, Co-Founder, Lawyers with Purpose, LLC, and author of 47 Secret Veterans’ Benefits for Seniors…Benefits You Have Earned but Don’t Know About.
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