7/28/2019 After DOMA: Veterans' Spousal Benefits

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Tis series of fact sheets produced together by:

American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & DefendersHuman Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN.

VETERANS SPOUSAL BENEFITSTere are two categories o veterans who receive benets rom the Department o Veterans

Aairs: qualied non-retired veterans and retirees. Qualied veterans are those who meeeligibility requirements or specic benets (usually related to time-in-service and dischargecharacterization). Retirees are those who served at least 20 years in the military and who

ormally retired rom military service. Retirees receive benets both rom the Department oDeense (DOD) (see guidance on Military Spousal Benets act sheet or inormation relatedto these benets) and the Department o Veterans Aairs (VA).

WHO IS A VETERAN SPOUSE?

Te law that governs veterans benets contains a DOMA-like provision dening spouseAccording to the law, or these purposes, a spouse is a person o the opposite sex who is a wieor husband. Tere is a similarly restrictive denition o surviving spouse.

In light o the Supreme Courts ruling on DOMA, we believe that the denitiondescribed above are constitutionally invalid and can no longer be enorced. Tis positionis supported by the position that the Obama administration took in another DOMAchallenge that also challenged the veterans statutes. In that case, the Attorney General wrote

a letter to the Speaker o the House inorming the Speaker that the United States wouldnot deend these provisions because the Attorney General viewed them, like DOMA, asviolating the Equal Protection clause o the Fith Amendment. See http://sldn.3cdn.netb43c938d6601d41b9_26m6bu2hc.pd.

WHICH MARRIAGES DOES THE DEPARTMENT OF VETERANS AFFAIRS

CONSIDER VALID?

Te statute that governs veterans benets has problematic provisions or determiningwhen a marriage is valid. According to the law, a marriage is considered a marriage i iwas valid. . . according to the law o the place where the parties resided at the time o themarriage or the law o the place where the parties resided when the right to benets accrued.

Because this determination o marriage validity comes rom ederal statute, action will likely

be required by courts or by Congress. Te better standard would be a place o celebrationrule, so that spousal status is assessed according to the law o the state where one married orsecured a spousal status. Tis is the standard DOD and the military use, where there is nostatute speciying a place o residence rule. In our mobile society, it would make more senseor the ederal government to recognize all marriages that were valid where entered. We are

working to ensure that the ederal government respects married couples wherever possible.

Unless a place o celebration rule is established or the VA, i a veteran and his or her spousetraveled rom a state that would not recognize their marriage to marry in a state that allowsame-sex couples to marry, and lived in a non-recognition state when their veterans benets

The Supreme Court victory in United States v. Windsorstriking down the discriminatory ederal Deense o Marriage Act (DOMA) afrms that alloving and committed couples who are married deserve equal legal respect and treatment rom the ederal government. The demise o DOMAmarks a turning point in how the United States government treats the relationships o married same-sex couples or ederal programs that are linkedto being married. At the same time, a turning point is part o a longer journey, not the end o the road. There is much work ahead beore same-sexcouples living across the nation can enjoy all the same protections as their dierent-sex counterparts.

Keep in Mind:

Te Supreme Courts ruling in Windsor applies only to the ederalgovernment. It does not change discriminatory state laws excludingsame-sex couples rom state-conerred marriage rights.

Te ruling striking down DOMA will not be eective until 25 days

rom the decision. Even when eective, ederal agencieslargebureaucraciesmay need and take some time to change orms,implement procedures, train personnel, and efciently incorporatesame-sex couples into the spousal-based system.

Until same-sex couples can marry in every state in the nation, therewill be uncertainty about the extent to which same-sex spouses willreceive ederal marital-based protections nationwide. For ederalprograms that assess marital status based on the law o a state thatdoes not respect marriages o same-sex couples, those state laws

will likely pose obstacles or legally married couples and survivingspouses in accessing ederal protections and responsibilities.

Securing air access to ederal protections that come with marriageor all same-sex couples in the nation will take some time and work.In some situations, it may require Congressional action or ormalrule-making by agencies.

Beore making a decision, it is essential that you consult an attorneyor individualized legal advice. Tis is particularly important orpeople who are on certain public benets, as getting married may

jeopardize your eligibility without providing you the ull measureo protections other married couples enjoy. In addition, couples

who travel to another place to marry and then return to live in astate that does not respect their marriage may be unairly unableto obtain a divorce, which can lead to serious negative legal andnancial consequences. People must make careul decisions whenand where to marry, even as we work together to end this injustice.

We are committed to winning universal access to ederal maritalprotections or married same-sex couples through ongoing publicpolicy advocacy, and, where necessary, strategic litigation. Contactour organizations i you have questions, or updates and to learnmore about what you can do to achieve ull equality or those whoare LGB.

Tis Guidance is intended to provide general inormation regardingmajor areas o ederal marriage-based rights and protections based onhow the various ederal agencies have administered ederal benets. Itshould not be construed as legal advice or a legal opinion on anyspecifc acts or circumstances, and does not create an attorney-client

relationship. Past practice is no guarantee o uture developments.While laws and legal procedure are subject to requent change anddiering interpretations in the ordinary course, this is even more truenow as the ederal government dismantles DOMA and extends ederalprotections to same-sex couples. None o the organizations publishingthis inormation can ensure the inormation is current or be responsibleor any use to which it is put.

No tax advice is intended, and nothing therein should be used, andcannot be used, or the purpose o avoiding penalties under the InternalRevenue Code.

Contact a qualied attorney in your state or legal advice about yourparticular situation.

http://sldn.3cdn.net/b43c938d6601df41b9_26m6bu2hc.pdfhttp://sldn.3cdn.net/b43c938d6601df41b9_26m6bu2hc.pdfhttp://sldn.3cdn.net/b43c938d6601df41b9_26m6bu2hc.pdfhttp://sldn.3cdn.net/b43c938d6601df41b9_26m6bu2hc.pdf

7/28/2019 After DOMA: Veterans' Spousal Benefits

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AFTER DOMA: WHAT IT MEANS FOR YOU VETERANS SPOUSAL BENEFITS 2

Tis series of fact sheets produced together by:

American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & DefendersHuman Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN.

took eect, they would likely not be considered married or purposes o theVA. o help clariy, see the chart below.

If Then, forpurposes of the

VA, you are

You lived in a recognition state when you gotmarried and live in a recognition state when thebenefts take eect

Married

You lived in a recognition state when you got mar-ried but live in a non- recognition state when thebenefts take eect

Married

You lived in a non- recognition state when you gotmarried (by traveling to a recognition state to getmarried) but live in a recognition state when thebenefts take eect

Married

You lived in a non- recognition state when you gotmarried (by traveling to a recognition state to getmarried) and continue to live in a non- recognitionstate when the benefts take eect

Likely Notmarried

Tere are many veterans who live in non- recognition states (e.g., exas,Virginia) who traveled to recognition states to get married, but who stilllive in non- recognition states and will do so when the benets take eect.Veterans and their spouses in this situation likely will still not qualiy as beingin valid marriages or purposes o the VA.

Tis would give rise to particularly troubling outcomes or retirees in thissituation, who would normally get some o their benets rom the DODand some rom the VA. For those retirees, the DOD would recognize theirmarriage and provide benets, but the VA would not.

WHAT ARE THE SPOUSAL VETERANS BENEFITS?

I your marriage is respected by the VA, there are a number o importantbenets that the VA oers to spouses or surviving spouses. Some o the mostimportant are:

Passing on GI Bill benetsFor more inormation, please visit

www.gibill.va.gov/benets/post_911_gibill/transer_o_benets.html

Veterans Health Administration healthcare (CHAMPVA)For more inormation, please visit

www.va.gov/hac/orbeneciaries/champva/champva.asp

Dependency and Indemnity CompensationFor more inormation, please visitbenets.va.gov/COMPENSAION/types-dependency_and_indemnity.asp

Te relevant application orm can be ound here:www.vba.va.gov/pubs/orms/VBA-21-534-ARE.pd

Dependents Educational Assistance ProgramFor more inormation, please visit

www.gibill.va.gov/benets/other_programs/dea.html

Te relevant application orm can be ound here:www.vba.va.gov/pubs/orms/vba-22-5490-are.pd

VA Guaranteed Home Loan ProgramFor more inormation, please visitwww.benets.va.gov/homeloans/

For inormation on receiving a Certicate o Eligibility, please visitwww.benets.va.gov/HOMELOANS/purchaseco_certicate.asp

Burial beneftsFor more inormation, please visit

www.cem.va.gov/burial_benets/ and

www.cem.va.gov/cem/burial_benets/eligible.asp

HOW DO I REGISTER?

All VA benets require individual application. However, or every beneta valid marriage license or marriage certicate is sufcient to demonstrate aspousal relationship. (Other documentation will be required to demonstrategeneral eligibility, such as proo o veterans service or a death certicate, inthe case o surviving spouses.)

WHAT ACTION DO I NEED TO TAKE?

With the Supreme Courts ruling, we believe that married veterans wholived in recognition states (states that either licensed or respected marriageo same-sex couples at the time o the marriage) when they got married orlive in recognition states when the benets take eect should qualiy or VAspousal benets or which they meet all other requirements.

I your application or a benet is denied based on the VAs ailure torecognize your marriage, please contact a legal organization to discuss thematter. For general inormation on appealing benets determinations, please

visitwww.bva.va.gov/.

Veterans who lived in non-marriage states when they got married andcontinue to live in non-marriage states when the benets take eect shouldmonitor the Department o Veterans Aairs website to learn how the VA wiladdress the likely limitation on marriage recognition.

FOR MORE INFORMATION, CONTACT

OUTSERVE-SLDN

outserve-sldn.org

GAY & LESBIAN ADVOCATES & DEFENDERS

glad.org

AMERICAN CIVIL LIBERTIES UNION

aclu.org/lgbt

LAMBDA LEGAL

lambdalegal.org

NATIONAL CENTER FOR LESBIAN RIGHTS

nclrights.org

http://www.gibill.va.gov/benefits/post_911_gibill/transfer_of_benefits.htmlhttp://www.va.gov/hac/forbeneficiaries/champva/champva.asphttp://benefits.va.gov/COMPENSATION/types-dependency_and_indemnity.asphttp://www.vba.va.gov/pubs/forms/VBA-21-534-ARE.pdfhttp://www.gibill.va.gov/benefits/other_programs/dea.htmlhttp://www.vba.va.gov/pubs/forms/vba-22-5490-are.pdfhttp://www.benefits.va.gov/homeloans/http://www.benefits.va.gov/HOMELOANS/purchaseco_certificate.asphttp://www.cem.va.gov/burial_benefits/http://www.cem.va.gov/cem/burial_benefits/eligible.asphttp://www.outserve-sldn.org/http://www.glad.org/http://www.glad.org/http://www.glad.org/http://www.lambdalegal.org/http://www.nclrights.org/http://www.nclrights.org/http://www.lambdalegal.org/http://www.glad.org/http://www.glad.org/http://www.glad.org/http://www.glad.org/http://www.glad.org/http://www.outserve-sldn.org/http://www.cem.va.gov/cem/burial_benefits/eligible.asphttp://www.cem.va.gov/burial_benefits/http://www.benefits.va.gov/HOMELOANS/purchaseco_certificate.asphttp://www.benefits.va.gov/homeloans/http://www.vba.va.gov/pubs/forms/vba-22-5490-are.pdfhttp://www.gibill.va.gov/benefits/other_programs/dea.htmlhttp://www.vba.va.gov/pubs/forms/VBA-21-534-ARE.pdfhttp://benefits.va.gov/COMPENSATION/types-dependency_and_indemnity.asphttp://www.va.gov/hac/forbeneficiaries/champva/champva.asphttp://www.gibill.va.gov/benefits/post_911_gibill/transfer_of_benefits.html