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DOMA’s Impact on LGBT Older Americans

Edith Windsor

SOURCE: AP/Richard Drew

Edith Windsor, left, the plaintiff in the historic United States v. Windsor case before the U.S. Supreme Court, accompanied by her attorney Roberta Kaplan, arrives at the LGBT Center for a news conference, in New York, Wednesday, June 26, 2013.

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Although aging populations are not typically the most popular face of the lesbian, gay, bisexual, and transgender, or LGBT, movement, it was one brave 83-year-old widow who finally defeated Section 3 of the discriminatory Defense of Marriage Act, or DOMA, which limited federal marriage recognition and spousal benefits to opposite-sex couples. The Supreme Court’s decision in United States v. Windsor forbids the federal government from depriving same-sex couples in state-recognized marriages of the federal benefits enjoyed by those in opposite-sex marriages.

Edie Windsor and Thea Spyer were married in Canada and lived as legally recognized spouses in New York until Spyer’s death. If the couple’s marriage had been recognized by the federal government, Windsor would have been able to receive the same benefits and protections as opposite-sex spouses, including access to a spousal deduction, meaning that she would not have to pay federal estate taxes on inheritance. But because of DOMA, she paid more than $300,000 in estate taxes. Windsor challenged the discriminatory policy, which went before the Supreme Court. And she won.

Sadly, Windsor’s case was not out of the ordinary, and discrimination under DOMA imposed significant harm on families headed by same-sex married couples. The impact of the law was particularly harsh for older gay and lesbian couples. Compared to the rest of older Americans, LGBT elders experience greater financial insecurity. This is driven by a variety of factors, including social prejudice and laws such as DOMA that allow discrimination and unequal treatment. In addition, since many public-support systems for aging populations that are aimed at increasing financial stability and providing access to health care have spousal benefit components, same-sex married couples, prior to having federal recognition of their relationships, were prevented from attaining full and equal access.

How DOMA hurt LGBT elders

Estate taxes

As in Edie Windsor’s case, under DOMA, many surviving same-sex spouses had to pay estate taxes when a partner died, from which opposite-sex couples were exempt. Moreover, married same-sex couples often had to go through complicated and expensive legal processes to make sure their inheritance went to their spouse—a painstaking process that couples with federally recognized relationships were spared.

Social Security benefits

Under DOMA’s ban on federal recognition of same-sex marriages, same-sex couples were denied Social Security’s key marital benefits, including:

  • The spousal benefit, which allows a spouse to receive the equivalent of 50 percent of their partner’s Social Security benefit if that sum is greater than their own
  • The survivor benefit, which allows a surviving spouse to receive their partner’s benefits instead of their own (if the partner’s benefits are higher)
  • The death benefit, which is a one-time sum given to a surviving spouse to help cover funeral expenses

LGBT Americans worked and paid in to Social Security just like the rest of the workforce, but received unequal benefits—lesbian couples receive 31.5 percent less, and gay couples receive 17.8 percent less than opposite-sex couples.  The lack of the critical safety net provided by Social Security benefits was a significant driver of poverty among older LGBT couples.

Veterans’ benefits

Despite the repeal of Don’t Ask, Don’t Tell, or DADT, which allowed gay, lesbian, and bisexual service members to be open about their sexual orientation, same-sex spouses of veterans were still denied benefits and pensions given to veterans’ opposite-sex spouses because of DOMA.

The fight is not over

Now that the Supreme Court has handed down its decision in United States v. Windsor, married same-sex couples will face fewer barriers to equal services to maintain financial security during their golden years. That is a very good thing, but the fight is not over. It is especially important to consider the impact that a lack of state marriage equality has on older gay and lesbian couples. As long as same-sex marriages are not recognized in all 50 states, same-sex couples will be denied the support systems vital to maintaining health, well-being, and financial security.

The Obama administration—a longtime opponent of DOMA—can and should take swift action to ensure that LGBT elders are granted access to the benefits and protections given to spouses under federal law. And to ensure that, regardless of where in the country couples reside, all same-sex married couples have their relationships respected by the federal government. Congress must also pass the Respect for Marriage Act, which would completely remove DOMA’s discriminatory legacy from the lives of gay and lesbian couples.

Andrew Cray is a Policy Analyst with the LGBT Research and Communications Project at the Center for American Progress. Sunny Frothingham is an intern with the LGBT Research and Communications Project. 

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