DOMA Update & The Department of Defense

I have selected to review the Department of Defense (DoD) and the Department of Veterans Affairs (DoVA) response to the Supreme Court’s (SCOTUS) ruling (June 26, 2013) on the Defense of Marriage Act (DOMA) first, because the DoD was an early riser and was the first department with a response to the DOMA ruling. As a matter of fact, it was on February 11, 2013, that the then Secretary Defense, Leon E. Panetta, first issued a memorandum on extending benefits to same-sex domestic partners of military members—predating the SCOTUS ruling.

The memorandum reviewed 20 programs available to military members in which they could designate benefits to someone other than a spouse. These programs cover education, survivor, travel and transportation benefits. The memorandum then identified additional benefits that would be provided “to same-sex domestic partners of Military Service members and their children through changes in Department of Defense policies and regulations.” The memorandum ended with a list of benefits which could not be made available to same-sex spouses because of statute. Health care and housing allowances are examples of two of those benefits.

The decision by SCOTUS to repeal Section 3 of the DOMA made available those benefits which had been previously disallowed by statute. Same-sex married military spouses may now enroll in the Defense Enrollment Eligibility Reporting System, the DoD database of service members, TRICARE, as well as other benefits. Additionally, these spouses are now eligible to receive on-base housing, health care, and family separation allowance. There are more than 100 of these types of benefits for which same-sex couples are now eligible.

The military is now in a singular situation as regards same-sex couples. The SCOTUS ruling grants federal benefits to individuals who live in states where same-sex marriage is recognized. Throughout the United States, same-sex couples are in an awkward situation for financial planning: in order to receive full federal benefits they must be married in, and reside in, a state which recognizes same-sex marriage. However, military installations are considered federal lands, under federal jurisdiction.  So military members need only be married in a state which recognizes same-sex marriage to be eligible for federal benefits.

The DoD now encourages same-sex couples to marry. The DoD will grant seven days of leave to service members who need to travel more than 100 miles to legally marry. Additionally, and up to 10 days of leave is granted to service members who are stationed outside the continental United States, and need to return to the United States to legally marry. The DoD has been, and continues to be, ahead of the other federal departments and agencies. The SCOTUS ruling on DOMA was the final step in the military’s recognition of, and providing benefits for, same-sex married couples.

This month’s live CPE / CE event is a presentation I created to present to the various Estate Planning Councils around the country. I hope you will join me on October 25. To learn more about how you can become a part of the Paraklete team, please click here.

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