Pages tagged "socialsecurity"
By Kinna Crocker With marriage equality now coming to Illinois and Hawaii, nearly 40% of the country lives in a marriage equality state. But just how federal and state governments will navigate the still-unsettled reality (and consequences) of marriage equality remains an open question. The Supreme Court’s decisions in U.S. v. Windsor and Hollingsworth v. Perry vastly expanded the rights of the LGBT community by mandating same gender married couples have access to the over 1,000 federal rights and benefits (Windsor) associated with marriage. In Windsor, the Court held that Section 3 of the federal Defense of Marriage Act (DOMA), defining marriage as between a man and a woman, violates basic due process and equal protection rights. As a result of the Court’s decision invalidating this definition, the federal government must treat same gender married couples the same as opposite gender married couples for purposes of access to federal benefits. In Perry, the Court held the sponsors of Proposition 8, California’s constitutional ban on same gender marriage, did not have standing to appeal favorable lower court rulings on behalf of the state of California, effectively allowing same gender marriages to resume in California. In August, the Supreme Court denied Proposition 8 sponsors a final petition for review. Although Windsor invalidated Section 3 of DOMA, it left Section 2 in place, which allows states to refuse to recognize same gender marriages performed in other states. Marriages are not judgments or orders, and are therefore not entitled to equality under constitutional principles of full faith and credit among the states. If a same gender couple legally marries in a “marriage equality state” and moves or travels to a “non-equality state” (a state that does not recognize same gender marriage), the marriage has no legal meaning and ceases to exist as a matter of law in the non-equality state. This lack of uniformity in marriage equality among the states creates many questions regarding the availability of federal benefits for same gender married couples. By statute, certain federal benefits are available only if the couple is validly married under the laws of the state in which they reside, the so-called “place of residence” rule. Other federal benefits are available if the couple is considered to be validly married where the marriage license was obtained, the so-called “place of celebration” rule. The “place of celebration” rule is more expansive because the couple can obtain benefits regardless of the laws of the state in which they live. Although President Obama acted swiftly in calling on federal agencies to adopt the “place of celebration” rule to provide uniformity in the treatment of benefits for same gender couples, some federal agencies have not yet declared official positions and some have implemented the “place of residence” rule. For example, the Social Security Administration indicated Social Security benefits are available to same gender married couples if they live in a state that recognizes their legal union (the “place of residence” rule). It is unclear whether Social Security benefits will be available to same gender couples who were married in a marriage equality state and now live in a non-equality state; those applications are currently being held and not processed. Until further notice from the Social Security Administration, some same gender couples are waiting anxiously to learn whether they are entitled to benefits. Alternatively, some federal agencies clearly provide certain benefits to same gender married couples regardless of where they reside, endorsing the “place of celebration” rule. The Department of Defense, for instance, announced its plan to extend spousal and family benefits to same gender spouses of uniformed service members. Because some service members live in or are stationed in non-equality states, the Department of Defense is allowing military personnel ten days of non-chargeable leave for the purpose of traveling to a jurisdiction where same gender marriage is available in order to marry. Although six states have withheld issuing spousal cards to same gender spouses of national guard troops, the others (whether equality states or not) have begun issuing them. The Treasury Department recognizes marriages of same gender couples, regardless of where the couple lives. This adoption of the “place of celebration” rule provides for uniform treatment of all same gender married couples with respect to the filing of federal tax returns. These same gender couples can use the status of "married" on their federal returns and all federal tax provisions where marriage is a factor, including employee benefits, IRA contributions, earned income, child tax credits, and gift and estate taxes, will apply to same gender married couples. The policy explicitly does not apply to couples who are registered as domestic partners or who are in civil unions. Although the “place of celebration” rule provides uniformity in federal filing status for same gender married couples, it highlights the conflict present in non-equality states. Couples living in non-equality states must use the single filing status for state tax returns and the married filing status for federal tax returns. Since the information on federal and state returns is interconnected, these couples expend more in accountant fees in order to file tax returns correctly. The Supreme Court decisions also greatly affect the practice of family law. For example, a bizarre phenomenon now occurs where same gender couples legally married in marriage equality states, but living in non-equality states, are unable to divorce in their state of residence. This unusual circumstance has been dubbed “wedlocked” and is clearly causing problems for many couples. For example, a same gender couple married in California cannot obtain a divorce in Alaska without some creative legal maneuvering. Some Alaska attorneys are requesting annulments of these marriages, since neither marriage nor divorce is available to same gender couples, despite the fact that the elements of annulment are not satisfied. An annulment is objectionable to many same gender couples because, in effect, they are agreeing and representing to the court they were never married. Further, any federal spousal benefits to which those spouses may have been entitled after divorce are lost. For some couples, the state of domicile can resolve property division issues through property laws (although the applicability of community property laws becomes an issue) and custody disputes through laws applicable to unmarried parents. However, these couples are forced to maintain their marital status for federal purposes. The lack of uniformity among the states causes confusion and the potential for married couples to be stuck in their legal relationships with no apparent recourse. In California, the Perry decision grants legal marriage rights to same gender couples in the state. Same gender couples who were married in another state or country do not have to remarry in California to avail themselves of California spousal benefits and protections. Proposition 8 is deemed to be unconstitutional so all marriages validly performed in any marriage equality state or country, are recognized as valid marriages in California. Although parentage presumptions will apply equally to same and opposite gender married couples in California, post-Perry, it remains advisable for a non-biological parent to adopt the children of the marriage or domestic partnership. If LGBT families intend to travel across state lines, or decide to move to a non-equality state, there is no guarantee that parentage would be recognized based solely on the couple’s marital status as defined by a marriage equality state. As compared to a marriage license, a formal adoption order is a stronger legal document to possess should parentage be challenged in a non-equality state or in a state that refuses to recognize any and all rights flowing from a same gender relationship. As the law changes and government agencies provide guidance with respect to rights and responsibilities of individuals in same gender marriages, domestic partnerships and civil unions, it is important for LGBT families to continue to educate themselves. The uncertainty over when we will achieve marriage equality in all 50-states only makes this more imperative. Edited and reprinted with permission from the Bar Journal of the Sonoma County Bar Association.
[caption id="attachment_368" align="alignleft" width="112"] Boyce Hinman[/caption] Authored by Boyce Hinman, founder and director of the California Communities United Institute, and member of Marriage Equality USA. Hinman has been writing and posting a series, "Monday Morning Marriage Memo," as part of his Anatomy for Justice blog. This article was first published there, and is republished here with the author’s permission. Hinman resides in and serves California, therefore the posts sometimes have a California slant. NOTE: Marriage Equality USA is not a legal firm or a tax/accounting firm. No action should be taken based solely on the content of our news blog or website. Recently someone said she had heard that widows and widowers could only get Social Security survivor benefits if they have been married at least 10 years at the time of the death of their spouse. Same sex couples have only recently been allowed to marry. So, if there is a 10 year threshold, same sex couples would need to wait a long time before qualifying for Social Security survivor benefits. Note: I am not an attorney or a qualified tax expert. No action should be taken based solely on the content of these memos. However, I hope the memos will help you ask the right questions of people who are qualified in these issues. In fact, a couple must have been married for a minimum of only 9 months before the death of one of them for the widow or widower to qualify for Social Security survivor benefits based on the Social Security account of the deceased spouse. According to a representative of the Social Security Administration, that threshold period can be reduced. For example, if the spouse died in a tragic accident the 9 month rule might be reduced. People can also get certain Social Security spousal benefits when both of them are alive. To qualify for these benefits, the couple must have been married for a year prior to applying for the benefits. In the case of divorce, the former spouse of the deceased might also qualify for Social Security survivor benefits. However, in order for the divorced former spouse to qualify, the marriage must have lasted at least 10 years. As regards widows and widowers who were married to the deceased at the time of death, how much the survivor receives depends on several factors. The more earnings the deceased had prior to death, the higher the monthly payment the survivor may qualify for. The longer the deceased has been working, and paying Social Security taxes, the higher the amount the survivor will receive. However this factor does not increase the benefit beyond 10 years of working history of the deceased. The deceased’s having worked 11 years does not increase the benefit any more than 10 years of work does. Survivors get the full monthly payment if the worker worked and paid Social Security taxes for at least 10 years. However, if the deceased died young and had not yet worked 10 years, the widow or widower might still qualify for some portion of the full monthly payment. The age of the survivor, when he or she starts drawing the Social Security benefit, affects how large the monthly payments are. If he or she waits until full retirement age the survivor will get the full benefit. Full retirement age varies from age 66 to 67, depending on the date of birth of the survivor. However, in return for accepting reduced monthly payments, the survivor can start monthly payments as young as age 60. Also, if the survivor is caring for a child of the deceased, who is under age 16, the surviving spouse can start monthly payments at any age. In this case, the surviving spouse would get the full monthly payment. The amount would not be reduced because of the young age of the surviving spouse. You may read a brochure from the Social Security Administration, with more details on this issue, by directing your browser to the following address: http://www.ssa.gov/pubs/EN-05-10084.pdf Note: This article was corrected from an earlier version that misstated the amount of time a couple must be married before being eligible for social security spousal benefits.
[caption id="attachment_368" align="alignleft" width="112"] Boyce Hinman[/caption] Authored by Boyce Hinman, founder and director of the California Communities United Institute, and member of Marriage Equality USA. Hinman has been writing and posting a series, "Monday Morning Marriage Memo," as part of his Anatomy for Justice blog. This article was first published there, and is republished here with the author’s permission. Hinman resides in and serves California, therefore the posts sometimes have a California slant. NOTE: Marriage Equality USA is not a legal firm or a tax/accounting firm. No action should be taken based solely on the content of our news blog or website. If you are part of a same sex couple who married in California during the summer of 2008 you might qualify for a refund of part of the FICA taxes that you paid for tax years 2010, 2011 and 2012. Your employer may also qualify for partial refunds of FICA taxes it paid during those same tax years. To qualify for those refunds you would have to have been working for wages during those years. The same is true of same sex couples who married legally in other states or other nations where such marriages are legal, such as Canada. And it would still be true for same sex couples who married in states or nations which allow such marriages but who now live in states which do not allow same sex marriages. Note: I am not an attorney or a qualified tax expert. No action should be taken based solely on the content of these memos. However, I hope the memos will help you ask the right questions of people who are qualified in these issues. First let me explain what FICA taxes are. FICA taxes are taxes that employees pay into the Social Security fund and the Medicare fund. The taxes in those fund accounts are used to provide you with Social Security and Medicare in your senior years. Employers also pay taxes into these funds. In 2013, workers are paying Social Security Taxes equal to 6.2% of their total earnings. Each month that amount is withheld from the worker’s check and sent to the Social Security fund. The worker’s employer pays the same amount into that fund. With regard to Social Security that 6.2% applies only to the first $113,700 in annual income. Any income over that amount is not taxed. Also, in 2013, workers are paying Medicare taxes equal to 1.45% of their wages. Employers pay the same amount of Medicare taxes for each employee. This tax is charged against the total wages of each employee. There is no upper limit on the wages taxed for Medicare. So, why might refunds be due? Before DOMA was overturned, if an employer offered health insurance to the same sex spouse of an employee, the IRS considered the value of that insurance to be taxable income paid to the employee. So, when computing the FICA taxes owed, the IRS said, for same sex married couples, the FICA taxes owed were a percentage of the wages paid plus the value of the insurance provided to the same sex spouse of the employee. By contrast the IRS did not charge FICA taxes against the value of health insurance provided to the opposite sex spouses of employees. Now that DOMA has been overturned FICA taxes are not charged against the value of health insurance provided to the same sex spouses of employees where the couple married in a state or nation that allows such marriages. In addition, both employers and employees may seek refunds of that part of the FICA taxes that were charged against the value of the same sex spouse’s health insurance in the years 2010, 2011 and 2012.