Social Security Administration announces regulations for same-sex marriage claims

ssa_fB_Logo-e1373909751753Since the Supreme Court issued the Windsor decision in late June declaring Section 3 of DOMA unconstitutional, we have been awaiting clarification on exactly how federal benefits will be applied nationwide to same-sex married couples. If a same-sex married couple lives in a state that recognizes their marriage, i.e., a “recognition state,” then it is fairly clear that most federal benefits and burdens will indeed apply to that couple. However, if a same-sex married couple lives in a state that does not recognize their marriage, i.e., a “non-recognition state,” then the availability of federal benefits and burdens is unclear, and many will not apply.  The latest clarification to be released pertains to Social Security claims for same-sex spouses, officially referred to as “Windsor same-sex marriage claims.”

As of now, Social Security claims will be based upon the law of the couple’s state of residence.  Thus, only married same-sex couples who live in a state that recognizes their marriages will be eligible to receive the Social Security spousal benefit.  The decision appears to be based upon a regulation pertaining to Social Security claims that states a marriage is valid for Social Security purposes “if the courts of the State in which such insured individual is domiciled … would find that such applicant and such insured individual were validly married.”  To read the official release from the Social Security Administration, go here.

Other federal benefits and burdens that have been addressed since June include federal employee benefits, military spousal benefits and immigration.  Each of those have been applied more generously, based upon the state of celebration rather than of residence. The Office of Personnel Management released a Memorandum explaining that for purposes of federal employee benefits, the government will look to the state of celebration rather than the state of residence to determine whether federal employees can cover their same-sex spouses.  In other words, if a federal employee is in a same-sex marriage obtained in a state , that employee can cover his spouse under his federal employee benefits, regardless of where that couple resides. Similarly, the Department of Defense announced that spousal military benefits will be extended to the same-sex spouse of a military member, regardless of whether that couple lives in a recognition or non-recognition state.  Finally, Immigration and Naturalization Services now looks only to the state of celebration to determine whether a same-sex couple is entitled to spousal protection for immigration purposes, regardless of where they reside.


Failing to Update Your Life Insurance Beneficiary May Mean Your Ex-Spouse/Partner Receives the Proceeds

S.Ct. BuildingRarely does the Supreme Court weigh in on issues related to estate planning but in this term, it did just that.  The Court’s decision In Hillman v. Maretta centered on what happens when a decedent’s life insurance beneficiary is his ex-spouse, i.e., the decedent did not change the beneficiary designation after their divorce. Many states have laws addressing this circumstance. For example, in Colorado, state law dictates that upon divorce, any life insurance beneficiary designation naming the person’s ex-spouse is automatically revoked.  Virginia law, the state out of which the Hillman decision arose, has a similar law.  The Virginia law is two-fold.  First, it provides any designation of a spouse is deemed revoked upon divorce and the proceeds will be distributed as if the designation had never been made.  Second, it provides if the first part of the law is held to be preempted, then whoever would be entitled to the life insurance proceeds under state law may sue the former spouse to recover any proceeds paid.

In Hillman, the decedent was a federal employee and the life insurance policy at issue fell under the Federal Employees’ Group Life Insurance Act (FEGLIA).  FEGLIA provides that the proceeds of federal life insurance policies shall be paid to designated beneficiaries before anyone else.  There was no disagreement among the parties that FEGLIA preempted the first part of the Virginia state law regarding automatic revocation of an ex-spouse beneficiary. However, the dispute centered on the second part and those defending the state law argued that in FEGLIA, Congress was merely striving for the administrative convenience of knowing where to pay the funds, a convenience not disturbed by a subsequent lawsuit between the parties to recover those funds.

The Court rejected that argument.  Relying on legislative text and history, the Court reasoned that Congress sought not only administrative convenience but also to honor the employee’s choice of beneficiary.  The Court held that FEGLIA preempted both sections of Virginia’s law as interfering with Congress’ legislative scheme, because Virginia law hinges on a finding that the proceeds actually ‘belong’ to someone other than the named beneficiary.  The Court acknowledged that “[o]ne can imagine plausible reasons to favor a different policy” as employees often forget to update beneficiaries following divorce.  However, the fact remains, FEGLIA does not provide an exception or divorce revocation and under the principles of preemption, it controls over Virginia’s state law in this area.

In Hillman, this meant that the insurance proceeds went to the decedent’s ex-wife, rather than to the woman that was his wife at the time of his death.

Though this decision is limited to life insurance policies tied to federal employment, it serves as a reminder to review and update your estate planning regularly, including your life insurance beneficiary designations.

To read the opinion in its entirety, go here.


Dissolution of Same-Sex Marriages and Civil Unions From Other States – Can I? Why Should I?

legal gavel on top of divorce papersColorado’s new Civil Union law goes into effect in less than forty-eight hours and there is an almost palpable air of excitement.  Colorado’s LGBT community will finally have at least some legal recognition as well as legal rights, responsibilities and protections that have been denied them in the past, including a method for dissolution.  It isn’t marriage equality, but it is a strong step in the right direction.

One noteworthy aspect of the new Civil Unions law is the dissolution procedures. The new Colorado law provides that the divorce/dissolution procedures that apply to marriages will now equally apply to civil unions.  This is exceedingly relevant to many same-sex couples residing in Colorado who have previously entered into a marriage, civil union or similar legal relationship in other states or countries, such as New York, Massachusetts or Canada.  Just as with heterosexual couples, some of those relationships have not worked out.  However, unlike heterosexual couples, many have been unable to obtain a formal divorce or dissolution because Colorado has not recognized their legal relationship.

In many states and countries that offer same-sex marriage or civil unions, meeting residency requirements in order to obtain a marriage or civil union is easy, often 24 to 48 hours.  By contrast, in order to obtain a divorce or dissolution, at least one of the parties has to meet the more strenuous dissolution residency requirements, often six months to one year. Traditionally, this prevented spouses from forum-shopping for favorable divorce laws but it has created chaos for same-sex couples.  For example, in New York, at least one of the parties to a marriage obtained in New York must be a resident of the state for one year prior to the filing of a divorce action.  See N.Y. Dom. Rel. Law §§ 230, 231.  If both parties already live in a different state, obviously the idea of picking up one’s life, job, possibly children and moving to New York for a year is simply not realistic.  However, if neither party is residing in a state that recognizes their legal relationship, such as Colorado pre-May 1, 2013, then that state also will not generally grant them a divorce or dissolution.  There is no legal process available to them to end their relationship, and no set procedure for dividing their property and/or their debt, nor for deciding issues related to any children they have, including visitation schedules and/or child support. These couples are literally left in perpetual limbo, oftentimes facing complications and obstacles when they subsequently try to purchase a new home or start a new business or maybe even enter into a new relationship because in certain states, they are considered married to someone else even though they cannot obtain a divorce.

Colorado’s Civil Union law provides some relief to Colorado residents who have found themselves in this limbo.  The new law provides that any out-of-state marriage, civil union or substantially similar legal relationship is “deemed” a Colorado civil union.  Thus, same-sex couples who have already obtained a marriage or civil union in other jurisdictions will have the same state rights and responsibilities that married couples enjoy.  This is welcome news for many couples who already obtained legal status elsewhere and will not have to go through another legal procedure in their home state in order to enjoy legal recognition. However, it is also welcome news for those couples who are no longer together but have been unable, for the reasons discussed above, to obtain a formal dissolution.  They can now use Colorado’s dissolution procedures to formally and legally terminate their relationship.

Of course, this new legal recognition of existing legal relationships from other jurisdictions is a double-edged sword. Some couples who were previously married or otherwise legally joined elsewhere have since informally ended their relationship and managed to resolve or work out any financial issues, decisions pertaining to children, etc.  Thus, the fact that their previous marriage or civil union will now be deemed a civil union under Colorado law is not altogether happy news.  However, dissolving that relationship through the dissolution procedures is generally being viewed as a necessary step so that all parties can move forward free of any future liabilities or legal entanglements, and be able to enter into a civil union someday with a new partner.

Additionally, the Colorado legislature was likely aware of the nationwide problems arising for other same-sex couples seeking a dissolution or divorce that do not reside in the state in which they were joined.  The Civil Unions Act specifically includes a provision that allows Colorado courts to retain jurisdiction of proceedings related to a civil union entered into here, even if one or both parties cease to reside in this State.  Under the law, if parties to a civil union entered into in Colorado move to or reside in a state that does not recognize their relationship and/or will not grant a dissolution, they can file for dissolution in Colorado even though neither party resides here.  In 2012, California enacted similar legislation providing that if a couple got married in California during the window in 2008 when same-sex marriage was recognized but lives in a state that will not grant them a divorce, the California court will have jurisdiction to grant them a dissolution.  The divorce case will be filed in the county where the couple got married and the dissolution is supposed to be adjudicated “in accordance with California law.”

As of May 1, 2013, Colorado same-sex couples, and former couples, will have a mechanism to dissolve their legal relationship even if it was formed in another state.  This is a tool that will definitely be beneficial to some Colorado residents.

For more information and to see a map of same-sex dissolution laws by state take a look at this article.

For an in depth look at the same-sex couple divorce dilemma check out this great article in the New York Magazine.

Answers to Frequently Asked Questions about the New Colorado Civil Unions Act

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Colorado’s legislature passed the Colorado Civil Unions Act (SB 2013-11) today, March 12,  2013.  Governor Hickenlooper will be signing the bill on Thursday, March 21, 2013 at the Colorado History Museum at 3 p.m. The law will be effective May 1, 2013.

With the passage of the Colorado Civil Unions Act many questions arise. To help answer some of the frequently asked questions, we put together the attached FAQ Sheet.

Questions answered in the attached FAQ Sheet include:

  • What is a civil union?
  • When can I get a civil union?
  • Who can enter into a civil union?
  • How do I get a civil union?
  • What impact does the Colorado Civil Union Act have on a domestic partnership agreement or civil contract that I previously entered into?
  • What if I have entered into a marriage, civil union, or registered domestic partnership elsewhere, do I have to enter into a civil union in Colorado?
  • Can I change my name after entering into a civil union?
  • How does a civil union impact my parent-child relationship with non-biological children I have with my partner?
  • What rights and responsibilities do I have as a result of my civil union?
  • What rights and responsibilities are withheld under civil unions that are granted under marriage?
  • How do I end a civil union, or obtain a divorce from a marriage to a same-sex spouse obtained in another state?
  • Are there any reasons why parties should not enter into a civil union?
  • Do we still need to do estate planning, such as medical powers of attorney and wills, to protect our rights now that we have civil unions?

To read the Act in its entirety, go here.

We will continue to update the FAQ sheet as the new law progresses.

Proposed federal sex education bill includes requirement to avoid gender stereotypes

The federal Real Education for Healthy Youth Act (the “Act”), introduced on February 15, 2013, is a comprehensive and inclusive sex education bill, intended to replace what many studies indicate are ineffective and medically inaccurate abstinence-only programs.  If passed, the Act would provide five-year grants for comprehensive sex education to state and local education agencies, nonprofit organizations and nonprofit or public universities to fund sex-ed programs.  Funding would also be provided for teacher training on sex education.  Additionally, federal funding would be prohibited for any programs that withhold information about HIV, are medically inaccurate or proven ineffective, promote gender stereotypes, are insensitive and unresponsive to the needs of LGBT youth, or are inconsistent with ethical imperatives of medicine and public health.  Priority would go to programs serving communities with high rates of unintended pregnancy, sexually transmitted diseases or sexual assault.  Similar bills have been introduced in the past several years but have not passed.

Recent data shows that the United States still has the highest rate of teen pregnancy in the industrialized world, and recent reports have shown that teen birth rates are on the rise.  In 2009, there were approximately 19 million new cases of Sexually Transmitted Infections, almost half of them occurring in young people between 15 to 24 years old, and young people accounted for 39% of all new HIV infections in the same year.

The bill requires any programs funded under the Act to emphasize emotional skills and the development of “healthy attitudes and values” about issues like body image, gender identity and sexual orientation.  All teaching would be “age and developmentally appropriate.”  However, several provisions are likely to remain controversial, including a section requiring that curricula refer interested students to local clinics for more information about sexual and reproductive health.  In practice, those clinics could include Planned Parenthood centers as in many areas those are the only clinics available to young people looking for that type of information.

Additionally, the Act also requires that programs report certain gathered information from their students to federal health officials in order to evaluate programs and consider any additions/changes that need to be made in the future.  The requested information would include age of first intercourse, number of sexual partners and contraceptive use.

Congresswoman Barbara Lee (D-CA), one of the sponsors of the Act, explained that research has shown programs that teach abstinence along with contraception “effectively delay the onset of sexual intercourse, reduce the number of sexual partners, and increase contraceptive use among teens.  These programs also reduce unintended pregnancy and the transmission of sexually transmitted infections, including HIV.”

Updated: Remedies for Colorado Workplace Discrimination Claims Will Increase Effective January 2015

The Colorado Anti-Discrimination Act (“CADA”), originally passed in 1959 and expanded in 2007, currently prohibits discrimination in the workplace and in public accommodations based on age, race, disability, gender, sexual orientation, religion, creed, national origin, or ancestry.  The CADA is comparable to federal law, namely Title VII of the Civil Rights Act of 1964 (“CRA”), however, the CADA offers broader protections against discrimination, but also provides significantly less meaningful remedies.

The CADA’s scope of protection exceeds that of its federal counterpart in that the CRA only applies to employers with 15 or more employees, while the CADA applies to employers of any size.  Additionally, the CADA’s prohibition against discrimination based on sexual orientation is not included in the CRA.  This means that the LGBT community’s only protection from discrimination in employment and public accommodation is found under the CADA state law.

However, the CADA is also more limited than the CRA in two significant ways. First, the CADA only allows successful plaintiffs to recover equitable damages, including reinstatement and lost wages.   It does not allow for the recovery of compensatory damages nor punitive damages and it does not allow a successful plaintiff to recover attorney fees.  Second, the CADA only prohibits age discrimination up to the age of 70. After an employee turns 70, they are essentially fair game under Colorado law.

House Bill 13-1136, which has now passed both branches of the State legislature, expands the remedies and protections available under the CADA with regard to employment discrimination. House Bill 13-1136 provides that if a plaintiff in a civil lawsuit proves that he or she was the victim of intentional discrimination in their workplace, then they are entitled to compensatory damages. Additionally, the Bill provides the plaintiff may recover punitive damages if they prove by clear and convincing evidence that the discriminatory or unfair employment practice was done with “malice or reckless indifference to the rights of the plaintiff.”  The Bill also dictates that in awarding any punitive damages, the court must take into consideration the size and assets of the defendant as well as the egregiousness of the intentional discriminatory act or practice.  Additionally, with regard to compensatory and punitive damages, the Bill provides that if the employer has between 1 and 4 employees, then the total of those damages cannot exceed $10,000.  It also provides that if the employer has between 5 and 14 employees, the total of those damages cannot exceed $25,000.  Finally, the Bill limits the maximum damages available to the amounts specified in the CRA.

The Bill also provides for the awarding of attorney fees to either the plaintiff or the defendant in certain specified circumstances.  The Bill authorizes a court to award a prevailing plaintiff-employee reasonable attorney fees and costs.  Conversely, if the court finds that the action was frivolous, groundless or vexatious, the court may award attorney fees and costs to the defendant-employer.

As noted above, age discrimination is only prohibited under the CADA until the age of 70.  House Bill 1136 removes this age limit, allowing for persons over the age of 70 to pursue a claim based on age discrimination.

Finally, the Bill also authorizes the already existing Colorado Civil Rights Commission to appoint a volunteer working group that will assist in education and outreach efforts to foster compliance with the CADA and thereby, reduce the instances of discriminatory or unfair employment practices. If passed, the amendments to the CADA through House Bill 1136 would not take effect until January 1, 2015.

Status: HB 13-1136 passed the House of Representatives on April 19, 2013 and passed the Senate on April 26, 2013.  Governor Hickenlooper signed the bill into law on May 6, 2013.

To read House Bill 13-1136 in its entirety, go here.

Legislation to Watch – Jury ACCESS Act

The Jury ACCESS Act was introduced last week by Senator Jeanne Shaheen (D-N.H.), with bipartisan support.  The legislation seeks to amend the United States Code to prohibit discrimination in the jury-selection process against LGBT citizens.

There are currently federal protections in place which prevent attorneys and/or judges from removing potential jurors on the basis of their race, color, religion, sex, national origin and economic status.  There are no similar protections from removal based upon sexual orientation and gender identity.  As a result, attorneys can, and have, removed jurors based upon their sexual orientation or gender identity.  Such discriminatory removals can, and do, impact the potential jurors and their right to serve on a jury, as well as impact the ability of both sides of the lawsuit to have a fair trial by a jury of their peers.

The Jury ACCESS Act, if passed, would amend federal law to include sexual orientation and gender identity as prohibited bases for the striking of jurors.  Equality in the judicial process is vital to the LGBT community, though it is not often at the forefront of the debate.  The introduction of this legislation is a significant step for the LGBT community.  During this political season, keep an eye on this important legislation and discuss it with your Senators.

For further information check out this article.  Additionally, we commend the National LGBT Bar Association for their work on this legislation, you can read their update here.

Martin Law Office LLC is a proud member of the National LGBT Bar Association, as well as the Colorado GLBT Bar Association.  Should you have any questions regarding this legislation or any other LGBT legal matter please feel free to contact us.