Advocate PDF 2016

Pre 2012 Archives

SCOTUS Decision Establishes Retirement Equality as Well as Marriage Equality

By Mike Andrew

The US Supreme Court’s decision in Obergefell vs. Hodges not only established marriage equality as the law of the land, it also ushered in the possibility of retirement equality for lesbian and gay seniors.

One of the many problems unique to lesbian and gay retirees is that many sources of retirement security have historically been tied to marriage. Since we were prevented by law from marrying our partners, we were excluded from the Social Security and pension benefits that were available to our straight counterparts. Even our homes were at risk if our partner died. That has all changed now that same-sex marriage is legal in all 50 states. US Attorney General Loretta Lynch acknowledged the historic change in a July 9 statement.

“Following the Supreme Court’s historic decision in Obergefell that every couple has the same right to participate in the institution of marriage, whether the partners are of the same sex or opposite sexes, I directed Justice Department staff to work with the agencies to ensure that the ruling be given full effect across the federal government,” Lynch said.

“Thanks to their leadership and the quick work of the Social Security Administration and the Department of Veterans Affairs, today I am proud to announce that the critical programs for veterans and elderly and disabled Americans, which previously could not give effect to the marriages of couples living in states that did not recognize those marriages, will now provide federal recognition for all marriages nationwide.”

After the Supreme Court struck down the Federal Defense of Marriage Act (DOMA) in USA v. Windsor (2013), most federal departments afforded full recognition to lesbian and gay married couples, but the Social Security and Veterans Administrations would only give spousal benefits to same-sex couples living where state governments also recognized the legality of their marriages.

In other words, a couple legally married in New York could apply for and get Social Security spousal benefits if they continued to live in New York but not if they moved to Florida. The same was true for survivor benefits.

Imagine deciding to retire to Miami, which thousands of New Yorkers do, only to find that your income will be drastically reduced because you no longer qualify for the same Social Security income you used to count on. Imagine that after a year or two in Miami your husband or wife dies, and you lose the income from their Social Security because the state of Florida says you weren’t married in the first place.

For lesbian and gay seniors who had pensions, as about 30 percent of seniors do, the prospects could be just as bad. Even if the pension plan provided for domestic partners, many plans simply offered the surviving partner a one-time cash payment instead of continuing income.

Even people’s homes were at risk if they were not legally married. The surviving spouse of a married couple can inherit real property automatically when their spouse dies and not have to pay estate or probate taxes. On the other hand, the surviving partner of an unmarried couple may have no legal title to their home at all.

Even if the survivor’s name is also on the deed and even if they are left the home in a valid will, they will still have to pay taxes on the property that a married spouse would not have to pay. In fact, that was the underlying complaint of plaintiff Edie Windsor in her suit against DOMA – when her wife died, leaving her their home, she was hit with a whopping $350,000 tax bill she would not have had to pay if the federal government had recognized their marriage. Fortunately, the Supreme Court’s decision in Obergefell changed all that by enabling lesbian and gay couples to marry in all 50 states and to have those marriages accorded all the benefits of opposite-sex marriage.

While the Obergefell decision establishes legal equality for lesbian and gay couples and makes retirement security easier for them to obtain, it still doesn’t wipe out all the inequities. LGBT retirees often get less in Social Security benefits to begin with, simply because they earn less and are unemployed more than straight workers.

According to the Williams Institute, gay men earn 10-30 percent less than their straight counterparts. There is not a significant gap between the earnings of straight women and lesbians, but women as a whole earn 30 percent less than men.

Lesbian and gay seniors are four times less likely than their straight counterparts to have children or grandchildren to help support them as they age. They are also twice as likely to live alone, according to a study by the National Gay and Lesbian Task Force Policy Institute.

Finally, a survey released earlier this year by the Equal Rights Center based in Washington DC found that lesbian and gay seniors received less favorable quotes on pricing and availability when seeking rooms at senior centers than straight seniors.

An estimated 2 million people aged 50 and older identify as LGBT, and that number is expected to double by 2030 according to the Institute for Multigenerational Health at the University of Washington.

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