Transcript The Senior Citizens’ Law Office Presents A Discussion Of

The Senior Citizens’ Law Office Presents
An Informational Discussion Of
SAME-SEX MARRIAGE
AND BENEFITS IN NEW MEXICO
February 25, 2014 – New Mexico State Bar Center
An Activity of SCLO’s Pride In Aging Project
Supported by Funding from the New Mexico Community Foundation
OVERVIEW
The status of marriage is relevant to rights and responsibilities under an
enormous number of laws related to matters ranging from taxation, to
property ownership and inheritance, to contracts and liability for debts, to
government benefits, and more.
This presentation focuses mainly on how that status for same-sex married
couples now applies to a variety of federal and state government benefits, an
extremely broad topic by itself. We are presenting general information, not
individual legal advice.
We will devote only limited attention to the important impact of same-sex
marriage on property and other state law rights, and taxation.
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Senior Citizens' Law Office, Albuquerque
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TWO IMPORTANT COURT DECISIONS
Griego v. Oliver – Decided by the New Mexico Supreme Court on
December 19, 2013
• Authorizing individuals of the same sex (“gender”) residing in
this state to lawfully marry, and receive equal treatment
under all New Mexico laws and rules.
United States v. Windsor – Decided by the U.S. Supreme Court
on June 26, 2013
• Ruling that individuals in same-sex marriages recognized by
state law are entitled to the benefits and responsibilities of
marital status under federal laws [[by invalidating Sec. 3 of the
federal Defense of Marriage Act (“DOMA”)]].
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PRELIMINARY CONSIDERATION #1
The subject of same-sex marriage has generated great public controversy.
Same sex couples have long fought to have their committed relationships, and
the rights and respect accorded to such relationships by legal marriage,
recognized.
Many individuals, organizations, government bodies and officials, and others
have opposed such recognition, based upon diverse religious, social,
“traditional,” moral, and other views and beliefs.
This presentation focuses on legal rights, not on peoples’ views about such
rights.
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PRELIMINARY CONSIDERATION #2
As noted, many views about marriage are based upon religious beliefs and
practices. However, marriage is in fact a civil legal right, regulated by state
law.
For over 150 years, New Mexico’s statutes have stated that:
“Marriage is contemplated by the law as a civil contract, for
which the consent of the contracting parties, capable of
contracting, is essential.”
Many New Mexicans believe their marriage must be solemnized in a religious
ceremony, and that is their right. But nobody is required to marry in that
fashion.
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PRELIMINARY CONSIDERATION #3
This presentation uses several terms --- including “same-sex” marriage,
“recognized,” “legal,” and “lawful” --- to which some people may object,
preferring alternatives. In fact, our state Supreme Court used the term
“same-gender” marriage.”
The terms used are intended to be neutral and/or terms regularly used in
legal disputes and decisions, and media reports, regarding same-sex
marriage.
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OVERVIEW OF FEDERAL BENEFITS
There are many types of benefits that can be referred to as
“federal,” including:
• Benefits for active-duty and retired members of the military, Veterans, and
federal civil service employees and retirees;
• Social Security, Medicare, and SSI (Medicaid, discussed later, is a
federal/state program);
• Benefits administered by other federal Executive Departments (e.g.,
Homeland Security, Interior, and Education); and
• Benefits authorized and funded by the federal government but
administered by the states, such as “SNAP” (formerly Food Stamps) and
LIHEAP home energy assistance.
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OVERVIEW OF STATE BENEFITS
The state of New Mexico administers a variety of state benefit programs;
including benefits available to state and local governmental employees and
retirees, and benefits available to the public at large (e.g., public health
programs, lottery scholarships, county indigent health care, and some
adoption and foster care assistance).
Some, like the governmental employee and retiree programs, are purely state
programs;
Some, like Medicaid, are funded and administered in partnership with the
federal government;
Some, like SNAP and LIHEAP, as noted are funded almost exclusively by the
federal government but administered by the state.
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OTHER STATE LAWS CONFERRING
RIGHTS AND RESPONSIBILITIES
While this paper focuses primarily on benefit programs, it is important to
remain aware that lawful marriage is important to rights, protections, and
responsibilities under state laws governing a broad range of matters such as:
property ownership; inheritance rights; liability for debts; divorce, alimony,
child support and visitation; consumer protections, decision-making for
children, health care decision-making rights, educational assistance, and
more.
Note that both federal and state laws address, for example, some private
insurance and employment matters; meaning that issues will sometimes arise
about how any conflicts between state and federal laws should be resolved.
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SAME-SEX MARRIAGE RIGHTS AND
RESPONSIBILITIES UNDER NEW MEXICO LAWS
GENERALLY
Our state Supreme Court ruled that the State of New Mexico is
required by our state Constitution to (1) allow same-gender
couples to lawfully marry, and (2) that under all New Mexico
laws:
“all rights, protections, and responsibilities that result
from the marital relationship shall apply equally to both
same-gender and opposite-gender married couples.”
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SAME-SEX MARRIAGE RIGHTS AND
RESPONSIBILITIES UNDER NEW MEXICO LAWS
GENERALLY (Cont’d)
Our state Supreme Court further ruled that under all state
statutes, rules, regulations, or common law:
“whenever reference is made to marriage, husband, wife,
spouse, family, immediate family, dependent, next of kin, widow,
widower, or any other word, which, in context, denotes a marital
relationship, the same shall apply to same-gender couples who
choose to marry.”
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IMPLEMENTATION OF SAME-SEX MARRIAGE
RIGHTS AND RESPONSIBILITIES -- FEDERAL BENEFITS
Immediately after the U.S. Supreme Court’s decision in the Windsor case, the
federal government began to implement the decision in all federal programs.
Within a few months, same-sex married individuals and their families had
been fully accorded equal rights under almost every program and law
administered by federal executive agencies; provided they married lawfully in
a state or foreign country that recognized same-sex marriages --- even if their
marriage is not recognized in their current state of residence.
The main exceptions for our purposes involve Social Security, Medicare, SSI,
and Medicaid, discussed next.
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SAME-SEX MARRIAGE AND SOCIAL SECURITY,
SSI, MEDICARE, AND MEDICAID
Shortly after the Windsor decision was issued, the Social Security
Administration (SSA) instructed its staff to begin accepting claims for Social
Security and SSI benefits from same-sex married spouses; but, although
encouraging them to apply for benefits, placed a hold on all such applications.
Thereafter, the agency began to approve the processing of different types of
claims on a piecemeal basis. The delay was partly due to the way pertinent
terms are defined in the Social Security Act.
We summarize those approved types of claims next, but it important to be
aware that SSA is not currently processing any such claims by New Mexico
residents, pending an opinion from the agency’s legal counsel.
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SOCIAL SECURITY “SPOUSAL” BENEFITS
Last August SSA announced that benefits for “aged” (i.e., age 62 and older)
same-sex spouses would be allowed, provided that: (1) the marriage took
place in a state that already recognized same-sex marriages; and (2) at the
time of the application (or while the claim is pending final adjudication), the
worker is domiciled in a state that recognizes same-sex marriage. The two
states do not have to be the same.
In December, SSA further announced that benefits for the surviving spouses
of a same-sex marriage would be allowed, provided that: (1) the marriage
took place in a state that already recognized the marriage; and (2) at the time
of death, the worker was domiciled in a state that recognizes same-sex
marriage. The two states do not have to be the same.
As previously noted, any such claims by New Mexico residents are not yet
being processed.
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SSI BENEFITS
“Supplemental Security Income” (SSI) is a needs-based cash assistance
benefit administered by SSA, that is available to individuals and married
couples who are age 65 and older, or disabled. New Mexico residents who
get SSI benefits automatically get Medicaid as well.
SSA also initially placed a hold on all SSI claims submitted by same-sex
married individuals. It was not until January 9, 2014 that SSA adopted rules
for approving such SSI claims. The rules apply to claimants who would be
considered married for Social Security purposes or were legally married under
the laws of the state where both spouses have their “permanent home.”
These requirements would be satisfied by most same-sex couples residing in
New Mexico, but as previously noted such claims by New Mexico residents
are not yet being processed.
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MEDICARE COVERAGE
Eligibility for Medicare is based primarily on eligibility for Social Security (or
Railroad Retirement benefits), though some government workers are eligible
based on contributions to the Medicare Trust Fund. The spouses of those
individuals can also qualify for Medicare.
Same-sex married spouses can be eligible as spouses if they are 65 or older.
However, because of the hold on Social Security claims for New Mexicans,
Medicare applications based on marital status for New Mexico same-sex
spouses are also being kept on hold.
Ironically, because Medicare beneficiaries with tax reported income above
specified levels must pay higher amounts for their Medicare Part B and D
premiums, the income of a New Mexico beneficiary’s same-sex spouse can
apparently be counted for that purpose even though that spouse cannot yet
get Medicare.
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MEDICAID COVERAGE
Medicaid is a federal/state “partnership,” in which both levels of government
establish program rules and share program funding. Married couples have
several rights and responsibilities under Medicaid, including: in determining
financial eligibility; financial protections when their spouse is receiving
certain long term care coverage; and exceptions to transfer of assets penalties
and estate recovery.
Last September the federal Medicaid agency informed states that they could
choose not to afford such rights and protections to same-sex married
individuals, if their state does not recognize same-sex marriage. As a result of
our state Supreme Court’s decision, same-sex married couples in New Mexico
should have equal access to all Medicaid rights and responsibilities.
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IMPLEMENTATION OF SAME-SEX MARRIAGE RIGHTS
AND RESPONSIBILITIES UNDER NEW MEXICO LAWS
Employees of most state and local “government” agencies (including schools
and state colleges) have access to several benefits, all or most of which can be
extended to their spouses and dependents. The same is true of retirees from
those agencies, for whom monthly annuities, health, and other types of
benefits are available.
Several state agencies administer these benefits, e.g., the General Services
Department, the New Mexico Public Schools Insurance Authority, the Public
Employees Retirement Association, and the NM Retiree Health Coverage
Authority. Some major entities such as the University of New Mexico and
New Mexico State University administer their own retiree health coverage
plans. SCLO has contacted several of these agencies, and all who responded
say they are already providing equal treatment to same-sex married couples.
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FEDERAL TAXATION
The U.S. Supreme Court’s decision in the Windsor case directly involved equal
access by a same-sex married individual to a federal tax benefit. The IRS
quickly clarified that the decision would apply to federal taxes generally.
IRS rulings provide that same-sex marriages will be recognized for all federal
tax purposes if they were celebrated in a jurisdiction which recognized such
marriages, even if the spouses are currently living in a state that does not.
The IRS also clarified that same-sex couples can seek retroactive adjustments
and refunds of various types of tax liability for up to three prior tax years; but
since same-sex marriage was “legalized” here only last year, that should affect
few New Mexico residents. Consultation with a tax professional will be wise.
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PRIVATE HEALTH INSURANCE PURCHASE SUBSIDIES
The federal Affordable Care Act authorized the establishment of Health
Insurance Exchanges (a/k/a “Marketplaces”), through which individuals and
families can purchase private health insurance policies.
The law also authorized financial assistance with such purchases --- premium
tax credits and cost-sharing subsidies --- as well as various exceptions to a
requirement to purchase insurance.
Eligibility for financial assistance, and for some exceptions, is determined by
the Exchanges. Eligibility for financial assistance is based on federal tax rules,
so the rights of same-sex married couples extend to such determinations by
the Exchanges. The same appears to be true for exceptions.
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STATE TAXES
With respect to all New Mexico taxes, our state Supreme Court’s decision
requires equal rights, protections, and responsibilities for same-sex married
individuals. SCLO has not yet seen any instructions on point by the Taxation &
Revenue Department, but we anticipate the Department will fully implement
the Supreme Court’s ruling.
With respect to state income taxes, New Mexico state income tax return
forms generally rely on a married individual’s or couple’s federal return, so
individuals in same-sex marriages celebrated here on or before December 31,
2013 will almost certainly have marital rights and responsibilities for their
2013 returns.
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PERSISTENCE AND INGENUITY
Like other married couples, same-sex married individuals will need to report
their family and dependents statuses to any agencies, individuals, and courts
implementing pertinent state law rights. They may often need to be
persistent in raising rights because it will likely take time for the knowledge of
some officials, and the language in diverse forms, to catch up with these
rights.
With respect to forms, recall that our state Supreme Court ruled that terms
like “husband” and “wife,” etc. must be construed as applying to same-sex
married individuals. In Bernalillo County at least, marriage forms have
already been revised to refer to each party as “spouse.” However, until such
time as myriad other forms with opposite-sex marriage terms are replaced,
couples will have to use their ingenuity as to how best to complete them.
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SOME SOURCES OF FURTHER INFORMATION
The Human Rights Campaign, www.hrc.org, 617-426-1350
Gay and Lesbian Advocates & Defenders, www.glad.org, 1-800-455-4523 (legal
information line), [email protected]
Social Security Administration claims processing updates --www.socialsecurity.gov/same-sexcouples
American Foundation For Equal Rights, www.afer.org, [email protected]
American Civil Liberties Union, www.aclu.org
“AFTER DOMA” Fact Sheet Series --- Produced by several groups shortly after the
Windsor ruling, they discuss ways in which marital status affects many benefit
programs (can be found online by putting After DOMA in your search engine)
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