Marriage Rights for the LGBTQ+ Community to Consider

There are more than 1,100 federal rights and privileges offered to married individuals, including:

Surviving same-sex spouses have rights to income from Social Security, veterans’ benefits, and employer pension benefits, among others. As a general rule, to obtain benefits you must complete all required forms and provide documentation of your marriage.
The Patient Protection and Affordable Care Act made adding your same-sex spouse to your employer-provided health insurance a right.^[1]
The Family and Medical Leave Act^[2]entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons, like caring for a spouse, with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.
Federal estate tax planning strategies are available to married couples such as portability of the lifetime exclusion amount, and if the recipient is a U.S. citizen, the ability to receive gifts and bequests without gift or estate tax.
Many strategies are available to fund retirement goals. Understanding your rights, protections, and the nuances of these strategies is important to avoid unintended consequences.^[3] For example, the Employee Retirement Income Security Act of 1974 provides guidelines for spousal access to certain employer-sponsored retirement accounts, such as 401(k), 403(b), and pension plans, upon marriage or divorce.
All states allow for joint adoption by married couples, couples in recognized domestic partnerships, and civil unions. However, not all states allow for second-parent adoption by couples whose relationships are not legally recognized. A second-parent adoption allows a second parent to adopt a child without the “first parent” losing any parental rights.^[4]
Be sure your estate plan is up to date and considers all of the children in your family, whether adopted or not.
Consider who you would want to make your financial and medical decisions should you be unable to do so. Whether you are married or not, certain documents, such as a power of attorney or living will, allow you to authorize someone to step in and make decisions on your behalf. The person you choose may or may not be your spouse. These are important legal documents, seek the advice of an attorney in your state who understands the issues and can prepare such documents.

Marriage can bring rights and benefits. Every married couple, including same sex married couples, should understand the rights and benefits of marriage.

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Important Legal Disclosures and Information

1. Health care coverage options for same-sex couples, HealthCare.gov, https://www.healthcare.gov/married-same-sex-couples-and-the-marketplace/ (last accessed, May 12, 2023) Code of Federal Regulations, Title 45, §147.104(e) (2017).

2. See generally, U.S. Department of Labor, Family and Medical Leave (FMLA), https://www.dol.gov/general/topic/benefits-leave/fmla (last accessed May 12, 2023) and the web pages linked therein.

3. U.S. Department of Labor, What You Should Know About Your Retirement Plan, https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/publications/what-you-should-know-about-your-retirement-plan.pdf (last accessed May 12, 2023).

4. U.S. Department of Health and Human Services, Administration for Children and Families, Children’s Bureau, Child Welfare Information Gateway, https://www.childwelfare.gov/topics/adoption/adoptive/family-type/second-parent/ (last accessed May 12, 2023). Check with an attorney in your state to determine if a second parent adoption could apply in your case.

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Considerations for Same Sex Couples

Important Legal Disclosures and Information