Veteran's Spousal Benefits
IMPORTANT ALERT: On September 4, 2013, U.S. Attorney General Eric Holder announced that President Obama has directed the Executive Branch to take steps allowing for same-sex spouses of military veterans to collect federal benefits. http://www.justice.gov/opa/pr/2013/September/13-ag-991.html
The new policy means that the administration will no longer enforce statutory language governing the Veterans Administration (VA) and the Department of Defense (DoD) that restricts the awarding of spousal benefits to opposite-sex marriages only. The language, contained within Title 38 of the U.S. Code, has, until now, prevented the Executive Branch from providing spousal benefits to veterans—and in some instances active-duty service members and reservists—who are in same-sex marriages recognized under state law.
There are two categories of veterans who receive benefits from the Department of Veterans Affairs: qualified non-retired veterans and retirees. Qualified veterans are those who meet eligibility requirements for specific benefits (usually related to time-in-service and discharge characterization). Retirees are those who served at least 20 years in the military and who formally retired from military service. Retirees receive benefits both from the Department of Defense (DOD) (see guidance on Military Spousal Benefits fact sheet for information related to these benefits) and the Department of Veterans Affairs (VA).
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The law that governs veteran’s benefits contains a DOMA-like provision defining spouse. According to the law, for these purposes, a spouse is “a person of the opposite sex who is a wife or husband.” There is a similarly restrictive definition of “surviving spouse.”
In light of the Supreme Court’s ruling on DOMA, we believe that the definitions described above are constitutionally invalid and can no longer be enforced. This position is supported by the position that the Obama administration took in another DOMA challenge that also challenged the veteran’s statutes. In that case, the Attorney General wrote a letter to the Speaker of the House informing the Speaker that the United States would not defend these provisions because the Attorney General viewed them, like DOMA, as violating the Equal Protection clause of the Fifth Amendment. See http://sldn.3cdn.net/b43c938d6601df41b9_26m6bu2hc.pdf.
The statute that governs veteran’s benefits has problematic provisions for determining when a marriage is valid. According to the law, a marriage is considered a marriage if it was “valid. . . according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued.”
Because this determination of marriage validity comes from federal statute, action will likely be required by courts or by Congress. The better standard would be a “place of celebration” rule, so that spousal status is assessed according to the law of the state where one married or secured a spousal status. This is the standard DOD and the military use, where there is no statute specifying a place of residence rule. In our mobile society, it would make more sense for the federal government to recognize all marriages that were valid where entered. We are working to ensure that the federal government respects married couples wherever possible.
Unless a “place of celebration” rule is established for the VA, if a veteran and his or her spouse traveled from a state that would not recognize their marriage to marry in a state that allows same-sex couples to marry, and lived in a non-recognition state when their veteran’s benefits took effect, they would likely not be considered married for purposes of the VA. To help clarify, see the chart below.
Then, for purposes of the VA, you are…
You lived in a recognition state when you got married and live in a recognition state when the benefits take effect
You lived in a recognition state when you got married but live in a non- recognition state when the benefits take effect
You lived in a non- recognition state when you got married (by traveling to a recognition state to get married) but live in a recognition state when the benefits take effect
You lived in a non- recognition state when you got married (by traveling to a recognition state to get married) and continue to live in a non- recognition state when the benefits take effect
Likely Not married
There are many veterans who live in non- recognition states (e.g., Texas, Virginia) who traveled to recognition states to get married, but who still live in non- recognition states and will do so when the benefits take effect. Veterans and their spouses in this situation likely will still not qualify as being in valid marriages for purposes of the VA.
This would give rise to particularly troubling outcomes for retirees in this situation, who would normally get some of their benefits from the DOD and some from the VA. For those retirees, the DOD would recognize their marriage and provide benefits, but the VA would not.
If your marriage is respected by the VA, there are a number of important benefits that the VA offers to spouses or surviving spouses. Some of the most important are:
- Passing on GI Bill benefits
For more information, please visit http://www.gibill.va.gov/benefits/post_911_gibill/transfer_of_benefits.html
- Veterans Health Administration healthcare (CHAMPVA)
For more information, please visit http://www.va.gov/hac/forbeneficiaries/champva/champva.asp
- Dependency and Indemnity Compensation
For more information, please visit http://benefits.va.gov/COMPENSATION/types-dependency_and_indemnity.asp
The relevant application form can be found here: http://www.vba.va.gov/pubs/forms/VBA-21-534-ARE.pdf
- Dependent’s Educational Assistance Program
For more information, please visit http://www.gibill.va.gov/benefits/other_programs/dea.html
The relevant application form can be found here: http://www.vba.va.gov/pubs/forms/vba-22-5490-are.pdf
- VA Guaranteed Home Loan Program
For more information, please visit http://www.benefits.va.gov/homeloans/
For information on receiving a Certificate of Eligibility, please visit http://www.benefits.va.gov/HOMELOANS/purchaseco_certificate.asp
- Burial benefits
For more information, please visit http://www.cem.va.gov/burial_benefits/ and http://www.cem.va.gov/cem/burial_benefits/eligible.asp
All VA benefits require individual application. However, for every benefit, a valid marriage license or marriage certificate is sufficient to demonstrate a spousal relationship. (Other documentation will be required to demonstrate general eligibility, such as proof of veteran’s service or a death certificate, in the case of surviving spouses.)
With the Supreme Court’s ruling, we believe that married veterans who lived in recognition states (states that either licensed or respected marriages of same-sex couples at the time of the marriage) when they got married or live in recognition states when the benefits take effect should qualify for VA spousal benefits for which they meet all other requirements.
If your application for a benefit is denied based on the VA’s failure to recognize your marriage, please contact a legal organization to discuss the matter. For general information on appealing benefits determinations, please visit http://www.bva.va.gov/.
Veterans who lived in non-marriage states when they got married and continue to live in non-marriage states when the benefits take effect should monitor the Department of Veterans Affairs website to learn how the VA will address the likely limitation on marriage recognition.
After DOMA Issue Areas
- Benefits and Protections for Civilian Federal Employees and their Spouses
- The Free Application for Federal Student Aid (FAFSA)
- Family and Medical Leave Act for Non-Federal Employees
- Federal Taxes
- Medicare Spousal Protections
- Military Spousal Benefits
- Private Employment Issues and Benefits
- Social Security Spousal and Family Protections
- Supplemental Security Income for Aged, Blind, and Disabled (SSI)
- Temporary Assistance for Needy Families (TANF)
- Veteran's Spousal Benefits