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How DOMA Affects Same Sex Couples

The Williams Institute is a think tank in the UCLA School of Law, and produces research and data on sexual orientation law and public policy. Recently, the Institute submitted a written testimony on the the impact of the Defense of Marriage Act (DOMA) on American families.

Under DOMA, which was enacted in 1996, the federal government is not required to recognize same-sex marriages as such, even if that marriage is legal in the couple’s home state. This produces many hardships and consequences for married same-sex couples, which are enumerated below:

1. Family Medical Leave Act (FMLA) Benefits: FMLA allows for individuals to leave their employment for a specific amount of time to care for their family members or different-sex spouses, but it does not allow for an individual to take that time off for their same-sex spouse.

2. Benefits for Spouses of Federal Employees: DOMA prevents the spouses of federal employees in same-sex marriages from receiving the same benefits as those in different-sex marriages.

3. Veteran Partner Benefits: different-sex spouses of veterans are eligible to receive certain benefits, including pensions, educational assistance and vocational training; however, same-sex partners of veterans are not entitled to any of these benefits.

4. Taxation of Employee Health Benefits: generally, when a different-sex spouse of an employee receives benefits, those benefits are tax exempt. However, when a same-sex spouse receives those same benefits, the federal government will impose a tax. Furthermore, many of the tax exemptions claimed by different-sex couples are not available for same-sex couples.

5. Medicaid Long Term Care (LTC): federal law requires that states allow for different-sex couples to retain income and assets if one of the partners goes into Medicaid LTC, but same-sex partners are not entitled to the same protection.

6. Estate Taxes: inheritances for different-sex couples are generally not subject to inheritance tax; however, same-sex couples are treated as if they were legal strangers and are subject to different inheritance tax provisions.

7. Income Taxes: many states allow for same-sex couples to file jointly as a married couple so that they can reduce their tax burden. However, because the federal government does not recognize such unions, same-sex couples must submit separate tax calculations from state returns as if they were single.

8. Social Security Survivor Benefits: same-sex spouses cannot continue to receive their spouse’s social security payments after the spouse’s death, while different-sex spouses can.

Aside from these astronomical differences between same-sex and different-sex couples, there is also the social stigma related to the inability to get married, or the challenges of having their marriages recognized by different states and the federal government. If you would like to read more about this study, please click here.

If you would like to speak to an experienced Bay Area attorney about your options as a same-sex spouse, you should call Howard & Fei, LLP for a consultation at 510.464.8083, or email us at


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