What Marriage Equality Means for End-of-Life Rights


The Supreme Court’s landmark 2015 decision guaranteeing same-sex couples the freedom to marry also ushered in a host of rights around end-of-life care for lesbian, gay, bisexual, and transgender (LGBT) couples. Here’s what changed after the marriage equality decision.

1. The right to make health care decisions

Anyone can create an advance directive or health care proxy, designating a specific person to make health care decisions if they’re unable to advocate for themselves. Yet in the past, if an LGBT person didn’t have this paperwork in place, hospitals in some states had to follow what’s known as family consent laws. These laws essentially create a hierarchy of family decision-makers for medical treatment, with spouses at the top followed by parents and extended family members.

In the past, LGBT partners without an advanced care directive in place to trump the family consent laws might see their own authority and wishes legally passed over in favor of distant relatives. That’s since changed, thanks to marriage equality.

2. The right to take a leave from work

When facing a loved one’s failing health, fears about losing your job can exacerbate the stress. Enter the Family and Medical Leave Act (FMLA). It’s a federal law that allows people to take unpaid leave from work during a health crisis or while caring for an ill family member, with the peace of mind that they’ll have a job waiting for them when they return to work. (Smaller employers with fewer than 50 employees aren’t mandated to require FMLA, and even at larger companies new or part-time employees may not be qualified.)

Employees can take a FMLA leave to care for loved ones—but only a spouse, parent, or child. With marriage equality in place, LGBT employees now have the same access to work protections while caring for ailing or dying spouses.

3. The right to inherit your loved one’s estate

Before marriage equality, LGBT couples that didn’t have wills and lived in states that didn’t recognize same-sex unions and marriages risked having any inheritance pass over the surviving spouse in favor of the biological family. And even with a will in place, survivors were often subject to massive estate and inheritance taxes that heterosexual couples could skirt.

That’s no longer the case: Now, your spouse has the same legal rights to your inheritance as any other married person and, unless your estate is very large (north of $10 million), you won’t be required to pay federal estate tax on those assets.

4. The right to survivor benefits

The Social Security Administration may be a federal agency, but in the past how it administered benefits depended, in part, on whether your state recognized your union. Thanks to marriage equality, the SSA recognizes same-sex marriage in all states when determining entitlement to Social Security benefits, Medicare, and eligibility and payment amount for Supplemental Security Income.

Those benefits can range from one-off and small (such as the lump-sum death benefit of $255 to pay for funeral arrangements) to the substantial and ongoing. Monthly survivor benefits, for instance, are based on the earnings record of the person who is deceased, your current age, and your relationship to the deceased worker.

It’s important to note that some spousal benefits require a minimum marriage duration. For example, to be eligible for monthly survivor benefits and the lump-sum death benefit, you must have been married for at least nine months at the time your spouse passed away.

Like the Social Security Administration, the Department of Veterans Affairs now recognizes all same-sex marriages regardless of a veteran’s state of residence. Prior to marriage equality, veterans benefits could be declined to a spouse if the state in which the service member resided did not legally recognize his or her marriage. Spouses of deceased veterans who are listed as dependents are entitled to a number of benefits and services including health care, survivors’ pensions, fiduciary counseling, educational assistance, home loans and vocational training. A marriage certificate is required to prove you were married.

5. Retirement proceeds

Whether your retirement plan is through a private, federal, state, or local government employer, federal law requires your retirement plan to provide equal treatment to a same-sex spouse. That covers everything from a pension to a 401(k) or IRA account.

If you are married or considering marriage, you may want to review your retirement plan to see what options exist for married retirees and make sure that your designations are accurate and reflect your wishes. You should also carefully read your retirement plan to determine if it includes a marriage duration provision.

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