This has been a busy week for news about same-sex marriage! Regardless of your position, both sides seem to be heating up the debate. North Carolina passed a Constitutional Amendment banning same-sex marriage and other, generally more palatable same-sex arrangements such as domestic partnerships. In response, the President weighed in by announcing that his view had “evolved” such that he believes same-sex couples should be allowed to be married. Unfortunately, Vice President Biden had already beaten the President to the punch and subsequently apologized for stealing the spotlight. Meanwhile, California’s Proposition 8 is still tied up in court.
I generally try to reserve comment on such sensitive political topics because, ultimately, my political position is irrelevant to how I create effective estate plans for a variety of clients. So, you are probably wondering why I am bringing it up at all. As you may already be aware, the federal government took a stand on this issue during the Bush Administration with the Defense of Marriage Act (DOMA). Among other things, DOMA defines a marriage as between a man and a woman which means anywhere the word “spouse” is written in federal law, same-sex “partners” are not included. Because the VA Aid & Attendance benefit is a federal benefit, the extension of these benefits is not applied to same-sex partners.
In the outpouring of recent news about who feels how about the issue, the Marine Corps Times quietly released an article saying that the federal government will no longer use DOMA as a means of denying benefits to same-sex spouses. The announcement arose in the context of a woman who requested increased disability benefits based on her marriage to another woman.
In the instant case, the couple is married in Connecticut, where same sex couples are allowed full marriages. It remains to be seen whether domestic partnerships, civil unions, or similar relationships will be suitable to qualify for increased VA benefits. Of course, this is a natural development from the repeal of Don’t Ask, Don’t Tell (DADT), another controversial policy created during the Clinton Administration. Prior to the repeal of DADT, homosexuals were not allowed to serve openly in the military in the first place, let alone attempt to qualify their partners for VA benefits.
Spousal benefits from the VA can be significant to both the veteran and the spouse. For example, a married veteran can collect $2,020 per month for Aid & Attendance benefits compared with $1,704 per month for a single veteran. Additionally, in the event that the surviving spouse requires Aid & Attendance benefits, the spouse may collect up to $1,094 per month. Similarly, other pension benefits and survivor benefits are presumably available to both same-sex married couples and registered domestic partners in California.
Because this area of law is “evolving,” we will have to continue to keep a close eye on how the policy plays out, particularly with respect to same sex couples who are not “married.”
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