One Year After U.S. v Windsor: Issues for Married Same-Sex Couples in Non-Marriage Equality States


Over a year has passed since the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act in the landmark case U.S. v. Windsor, allowing the federal government to recognize same-sex marriages.  In the weeks and months following this decision, the federal government has wrestled with what this will mean for same-sex couples interfacing with federal agencies.  Without a uniform mandate, each agency has published guidance and regulations clarifying how same-sex couples will be recognized for purposes of each federal program.  This blog post highlights some of the most critical federal benefits and areas of concern for same-sex couples and their families across the country.

Taxes: Beginning in 2014, the Internal Revenue Service announced that it will recognize all valid same-sex marriages regardless of where taxpayers live.  For many same-sex married couples living in states that do not recognize their marriage, this means filing one return as “married” for federal tax purposes and two individual state returns.  Same-sex spouses are also now recognized for federal estate and gift tax purposes, as well as 401K distributions.  The impact of federal recognition for tax purposes is unique to each individual and family.  For more information on how your home state has implemented the Windsor decision for state tax purposes visit:

Social Security: The Social Security Administration has announced that individuals whose same-sex spouse lives or lived in a state without marriage recognition will not be eligible to receive any spousal benefits including survivor and retirement benefits.  For example, this means that a surviving spouse living in Florida, whose husband or wife also lived in Florida, would not be considered to be “married” for purposes of any Social Security benefit.  If, however, a couple lived in a state recognizing their marriage at the time of the deceased spouse’s death, the surviving spouse could relocate to Florida or another non-marriage state and receive all spousal Social Security benefits.  HRC continues to urge Congress to take steps to end this harmful discrimination and to ensure that all families have access to the benefits they are entitled to.  For more information on Social Security benefits and HRC’s advocacy to expand these benefits to all LGBT families visit: Living Outside the Safety Net: LGBT Families and Social Security.

Health Care and Workplace Benefits: The Windsor decision has increased access to quality health care coverage and workplace benefits for many same-sex couples and their families regardless of their state of residence.  Same-sex spouses and step-children of federal employees and active duty service members are now eligible to receive full health care and dental coverage under the employee or service member’s plan.  The federal government has also made clear that it will begin recognizing all same-sex marriages for determining entitlement to or eligibility for Medicare.  It is important to note that for some couples, this recognition may impact eligibility.  Same-sex spouses and marriages will also be recognized for purposes of ERISA governed retirement and health plans. For more information on the Windsor decision and the impact of the Affordable Care Act on the LGBT community visit: What the Affordable Care Act Means for LGBT People and Their Families. For more information on how the Windsor decision might affect your employees or corporate policies visit: Domestic Partner Benefits After U.S. v. Windsor.

Currently, an employee living in a state without same-sex marriage recognition is not eligible for leave under the Family and Medical Leave Act (FMLA) to care for a same-sex spouse. In June 2014, the Department of Labor published a Notice of Proposed Rulemaking extending leave eligibility to all same-sex spouses regardless of their state of residence. Employees living in states that do not recognize their marriages will remain ineligible to take FMLA leave until the Department publishes an Interim or Final Rule.  Keep an eye out for ways you can get involved with HRC to support this important policy change.

Life and Estate Planning: “Life planning” helps you prepare for the possibility that, for health reasons, you may not be able to make your own medical or financial decisions, or take care of your dependents and loved ones. "Estate planning" helps you ensure that, upon your death, care of your loved ones and distribution of your assets happens the way you want it to.

Life and estate planning is important for everyone, but especially crucial for the LGBT community. Because life and estate planning is controlled by state law where you have your permanent residence, people who live in states that don’t recognize same-sex relationships or offer strong protections from discrimination are particularly vulnerable. For example, if your state doesn’t recognize your relationship, and if you become incapacitated or die without a plan in place, your partner or spouse may not be able to make important medical decisions on your behalf or may not inherit your assets.

A key point to understand is that while the Windsor decision was a major victory for the LGBT community, it does not reduce or eliminate the need for comprehensive life and estate planning.  Our step-by-step Life & Estate Planning Guide explains many issues the LGBT community faces, and walks you through the process of developing your plan. Please visit our website at to download your free copy and begin the process today.