Same-sex couples looking for clarity in wake of DOMA ruling
By Akbar Ahmed and Annysa Johnson | Milwaukee Journal Sentinel | Published: August 24, 2013
After 33 years together, Mary Thoreson and Wendy Pologe aren't certain how much they have spent on legal fees to ensure they and their son have some of the rights traditional families take for granted — but they know the figure runs into the thousands.
As a lesbian couple, they had to stipulate, for example, that if their son's biological mother died, the other partner could be his guardian. They had to put in writing that they could visit one another in the hospital and that each could inherit their joint assets if the other partner died.
Still, many benefits remained beyond their reach. They could not file joint tax returns. And come retirement, they would not be entitled to Social Security spousal benefits the way their heterosexual married friends would.
That was before June 26.
Now, Thoreson and Pologe are among thousands of same-sex couples in Wisconsin and across the country working to determine their eligibility for federal benefits in the wake of the U.S. Supreme Court's decision on the Defense of Marriage Act (DOMA).
Section 3 of the 1996 act had directed the federal government to only consider heterosexual couples for benefits tied to marriage. The Supreme Court ruling found that provision unconstitutional. The decision extended a range of federal benefits to married same-sex couples in the 13 states where gay marriage is legal and raised questions about how the benefits would work for married couples living in the majority of states where it is not. Many same-sex couples living in such states get married elsewhere and then return home.
Federal agencies are working with the Department of Justice to re-examine how they deliver benefits to same sex-couples. For now, those agencies and advocates are encouraging same-sex couples to go ahead and file for benefits to which they think they might be entitled.
The American Civil Liberties Union of Wisconsin last week joined the Social Security Administration in urging same-sex couples to apply for benefits.
"There are 1,100 benefits and obligations (for married couples), and in the 13 states and District of Columbia that recognize marriage, it's pretty straightforward," said Chris Ahmuty, executive director of ACLU Wisconsin. "But in states with civil unions and domestic partnerships, and in those that have neither, or where gay marriage is banned, it's more complicated and will probably take additional legislation."
Many same-sex couples in Wisconsin, both those who got married out-of-state and those who are registered domestic partners as part of the registry set up in 2009, may have thought nothing changed for them, because the state's 2006 constitutional ban on same-sex marriage remains intact.
But many couples can now access federal benefits, since some agencies provide spousal benefits regardless of where a couple lives, as long as they were married in a state where their marriage is legal. (Some others base their eligibility on whether the marriage is legal where the couple lives, so same-sex married couples in Wisconsin would not count.)
For two of the largest programs, Social Security and Medicare, domestic partner status in Wisconsin could be enough to win spousal benefits, according to Ahmuty and Madison attorney Tamara Packard, who successfully defended the registry in court in 2011. Those agencies offer benefits to any partner who can inherit without a will, one of the rights given to domestic partners by the state law.
Whether the Social Security Administration will accept domestic partner status as a basis for eligibility remains a gray area, said Peter Larson, a wealth planner with PNC Wealth Management who helps co-ordinate PNC's nationwide advising services for same-sex couples. He added that he has seen some commentary suggesting that Social Security will continue to recognize couples as married based only on whether their marriage is legal where they presently live.
Larson said he is worried that some same-sex couples have told him they want to delay their financial planning until clear policies are announced and they learn more about the changes. He would advise them to plan ahead either way, because federal agencies could take months to explain where they stand.
The Department of Defense is among the agencies that have been moving quickly, according to Denny Meyer, a spokesman for the advocacy group American Veterans for Equal Rights.
Recently, the department announced it would grant thousands of military personnel in same-sex relationships special leave to get married in states where it is legal so they would be eligible for military benefits.
But agencies like the Internal Revenue Service have yet to indicate any changes. The IRS does not have a clear statute or regulation on how it defines a couple as married, Packard said. Were the agency to set up a standard that could include married same-sex couples nationwide and domestic partners in states like Wisconsin, those couples could then file a joint federal tax return and receive spousal exemptions from inheritance taxes.
Laurel Patrick, a spokeswoman for the Wisconsin Department of Revenue, said the IRS has yet to issue any guidelines following the Supreme Court's DOMA ruling.
Thoreson and Pologe said a move from the IRS could mean important savings for them. "The tax thing could be huge," Pologe said.
Larson said some experts believe the IRS will look to whether same-sex marriage is legal in the state where couples reside. That could complicate matters in Wisconsin, because the revenue department now relies on federal forms for much of its information and could not do so if couples begin filing jointly at the federal level and separately for the state.
"The IRS is going to treat married couples as married couples whether the state recognizes their marriage or not," said Lester Pines, a senior partner at Packard's firm who was part of the team defending the domestic partnership registry in 2011. "Wisconsin is going to have to adapt its tax system to account for the fact that it doesn't recognize people's marriages. As things come up, it's going to have to adapt to the situation of separate but equal."
Thoreson and Pologe held a joining ceremony to mark their commitment in 1985. They had their legal work done in the late '80s, before their son, Daniel, was born in 1989. And when they had the opportunity to sign up as domestic partners, first with the City of Milwaukee in 1999 and then in the statewide registry 10 years later, they went out to do so.
Now in their 50s, with their son no longer a dependent and their careers not over — Thoreson is a senior power plant operator and Pologe is a personal banker — "we're not feeling it's a time-pressing issue for us" in terms of federal benefits, Thoreson added.
At one time, federal recognition "wasn't even on our radar," Pologe said. "Who even thought that was a reality or a possibility?"