The Senior Citizens’ Law Office Presents An Informational Discussion Of

The Senior Citizens’ Law Office PresentsAn Informational Discussion Of

SAME-SEX MARRIAGEAND BENEFITS IN NEW MEXICO

February 25, 2014 – New Mexico State Bar Center

An Activity of SCLO’s Pride In Aging Project Supported by Funding from the New Mexico Community Foundation

Senior Citizens' Law Office, Albuquerque 2

OVERVIEW

The status of marriage is relevant to rights and responsibilities under an enormous number of laws related to matters ranging from taxation, to property ownership and inheritance, to contracts and liability for debts, to government benefits, and more.

This presentation focuses mainly on how that status for same-sex married couples now applies to a variety of federal and state government benefits, an extremely broad topic by itself. We are presenting general information, not individual legal advice.

We will devote only limited attention to the important impact of same-sex marriage on property and other state law rights, and taxation.

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TWO IMPORTANT COURT DECISIONS

Griego v. Oliver – Decided by the New Mexico Supreme Court on December 19, 2013• Authorizing individuals of the same sex (“gender”) residing in

this state to lawfully marry, and receive equal treatment under all New Mexico laws and rules.

United States v. Windsor – Decided by the U.S. Supreme Court on June 26, 2013• Ruling that individuals in same-sex marriages recognized by

state law are entitled to the benefits and responsibilities of marital status under federal laws [[by invalidating Sec. 3 of the federal Defense of Marriage Act (“DOMA”)]].

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PRELIMINARY CONSIDERATION #1

The subject of same-sex marriage has generated great public controversy.

Same sex couples have long fought to have their committed relationships, and the rights and respect accorded to such relationships by legal marriage, recognized.

Many individuals, organizations, government bodies and officials, and others have opposed such recognition, based upon diverse religious, social, “traditional,” moral, and other views and beliefs.

This presentation focuses on legal rights, not on peoples’ views about such rights.

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As noted, many views about marriage are based upon religious beliefs and practices. However, marriage is in fact a civil legal right, regulated by state law.

For over 150 years, New Mexico’s statutes have stated that: “Marriage is contemplated by the law as a civil contract, for which the consent of the contracting parties, capable of contracting, is essential.”

Many New Mexicans believe their marriage must be solemnized in a religious ceremony, and that is their right. But nobody is required to marry in that fashion.

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This presentation uses several terms --- including “same-sex” marriage, “recognized,” “legal,” and “lawful” --- to which some people may object, preferring alternatives. In fact, our state Supreme Court used the term “same-gender” marriage.”

The terms used are intended to be neutral and/or terms regularly used in legal disputes and decisions, and media reports, regarding same-sex marriage.

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OVERVIEW OF FEDERAL BENEFITS

There are many types of benefits that can be referred to as “federal,” including:

• Benefits for active-duty and retired members of the military, Veterans, and federal civil service employees and retirees;

• Social Security, Medicare, and SSI (Medicaid, discussed later, is a federal/state program);

• Benefits administered by other federal Executive Departments (e.g., Homeland Security, Interior, and Education); and

• Benefits authorized and funded by the federal government but administered by the states, such as “SNAP” (formerly Food Stamps) and LIHEAP home energy assistance.

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OVERVIEW OF STATE BENEFITS

The state of New Mexico administers a variety of state benefit programs; including benefits available to state and local governmental employees and retirees, and benefits available to the public at large (e.g., public health programs, lottery scholarships, county indigent health care, and some adoption and foster care assistance).

Some, like the governmental employee and retiree programs, are purely state programs;Some, like Medicaid, are funded and administered in partnership with the federal government; Some, like SNAP and LIHEAP, as noted are funded almost exclusively by the federal government but administered by the state.

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OTHER STATE LAWS CONFERRING RIGHTS AND RESPONSIBILITIES

While this paper focuses primarily on benefit programs, it is important to remain aware that lawful marriage is important to rights, protections, and responsibilities under state laws governing a broad range of matters such as: property ownership; inheritance rights; liability for debts; divorce, alimony, child support and visitation; consumer protections, decision-making for children, health care decision-making rights, educational assistance, and more.

Note that both federal and state laws address, for example, some private insurance and employment matters; meaning that issues will sometimes arise about how any conflicts between state and federal laws should be resolved.

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SAME-SEX MARRIAGE RIGHTS ANDRESPONSIBILITIES UNDER NEW MEXICO LAWS GENERALLY

Our state Supreme Court ruled that the State of New Mexico is required by our state Constitution to (1) allow same-gender couples to lawfully marry, and (2) that under all New Mexico laws:

“all rights, protections, and responsibilities that result from the marital relationship shall apply equally to both same-gender and opposite-gender married couples.”

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SAME-SEX MARRIAGE RIGHTS ANDRESPONSIBILITIES UNDER NEW MEXICO LAWS GENERALLY (Cont’d)

Our state Supreme Court further ruled that under all state statutes, rules, regulations, or common law:

“whenever reference is made to marriage, husband, wife, spouse, family, immediate family, dependent, next of kin, widow, widower, or any other word, which, in context, denotes a marital relationship, the same shall apply to same-gender couples who choose to marry.”

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IMPLEMENTATION OF SAME-SEX MARRIAGERIGHTS AND RESPONSIBILITIES -- FEDERAL BENEFITS

Immediately after the U.S. Supreme Court’s decision in the Windsor case, the federal government began to implement the decision in all federal programs.

Within a few months, same-sex married individuals and their families had been fully accorded equal rights under almost every program and law administered by federal executive agencies; provided they married lawfully in a state or foreign country that recognized same-sex marriages --- even if their marriage is not recognized in their current state of residence.

The main exceptions for our purposes involve Social Security, Medicare, SSI, and Medicaid, discussed next.

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SAME-SEX MARRIAGE AND SOCIAL SECURITY,SSI, MEDICARE, AND MEDICAID

Shortly after the Windsor decision was issued, the Social Security Administration (SSA) instructed its staff to begin accepting claims for Social Security and SSI benefits from same-sex married spouses; but, although encouraging them to apply for benefits, placed a hold on all such applications.

Thereafter, the agency began to approve the processing of different types of claims on a piecemeal basis. The delay was partly due to the way pertinent terms are defined in the Social Security Act.

We summarize those approved types of claims next, but it important to be aware that SSA is not currently processing any such claims by New Mexico residents, pending an opinion from the agency’s legal counsel.

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SOCIAL SECURITY “SPOUSAL” BENEFITS

Last August SSA announced that benefits for “aged” (i.e., age 62 and older) same-sex spouses would be allowed, provided that: (1) the marriage took place in a state that already recognized same-sex marriages; and (2) at the time of the application (or while the claim is pending final adjudication), the worker is domiciled in a state that recognizes same-sex marriage. The two states do not have to be the same.

In December, SSA further announced that benefits for the surviving spouses of a same-sex marriage would be allowed, provided that: (1) the marriage took place in a state that already recognized the marriage; and (2) at the time of death, the worker was domiciled in a state that recognizes same-sex marriage. The two states do not have to be the same.As previously noted, any such claims by New Mexico residents are not yet being processed.

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SSI BENEFITS

“Supplemental Security Income” (SSI) is a needs-based cash assistance benefit administered by SSA, that is available to individuals and married couples who are age 65 and older, or disabled. New Mexico residents who get SSI benefits automatically get Medicaid as well.

SSA also initially placed a hold on all SSI claims submitted by same-sex married individuals. It was not until January 9, 2014 that SSA adopted rules for approving such SSI claims. The rules apply to claimants who would be considered married for Social Security purposes or were legally married under the laws of the state where both spouses have their “permanent home.” These requirements would be satisfied by most same-sex couples residing in New Mexico, but as previously noted such claims by New Mexico residents are not yet being processed.

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MEDICARE COVERAGE

Eligibility for Medicare is based primarily on eligibility for Social Security (or Railroad Retirement benefits), though some government workers are eligible based on contributions to the Medicare Trust Fund. The spouses of those individuals can also qualify for Medicare.

Same-sex married spouses can be eligible as spouses if they are 65 or older. However, because of the hold on Social Security claims for New Mexicans, Medicare applications based on marital status for New Mexico same-sex spouses are also being kept on hold.

Ironically, because Medicare beneficiaries with tax reported income above specified levels must pay higher amounts for their Medicare Part B and D premiums, the income of a New Mexico beneficiary’s same-sex spouse can apparently be counted for that purpose even though that spouse cannot yet get Medicare.

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MEDICAID COVERAGE

Medicaid is a federal/state “partnership,” in which both levels of government establish program rules and share program funding. Married couples have several rights and responsibilities under Medicaid, including: in determining financial eligibility; financial protections when their spouse is receiving certain long term care coverage; and exceptions to transfer of assets penalties and estate recovery.

Last September the federal Medicaid agency informed states that they could choose not to afford such rights and protections to same-sex married individuals, if their state does not recognize same-sex marriage. As a result of our state Supreme Court’s decision, same-sex married couples in New Mexico should have equal access to all Medicaid rights and responsibilities.

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IMPLEMENTATION OF SAME-SEX MARRIAGE RIGHTSAND RESPONSIBILITIES UNDER NEW MEXICO LAWS

Employees of most state and local “government” agencies (including schools and state colleges) have access to several benefits, all or most of which can be extended to their spouses and dependents. The same is true of retirees from those agencies, for whom monthly annuities, health, and other types of benefits are available.

Several state agencies administer these benefits, e.g., the General Services Department, the New Mexico Public Schools Insurance Authority, the Public Employees Retirement Association, and the NM Retiree Health Coverage Authority. Some major entities such as the University of New Mexico and New Mexico State University administer their own retiree health coverage plans. SCLO has contacted several of these agencies, and all who responded say they are already providing equal treatment to same-sex married couples.

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FEDERAL TAXATION

The U.S. Supreme Court’s decision in the Windsor case directly involved equal access by a same-sex married individual to a federal tax benefit. The IRS quickly clarified that the decision would apply to federal taxes generally. IRS rulings provide that same-sex marriages will be recognized for all federal tax purposes if they were celebrated in a jurisdiction which recognized such marriages, even if the spouses are currently living in a state that does not.

The IRS also clarified that same-sex couples can seek retroactive adjustments and refunds of various types of tax liability for up to three prior tax years; but since same-sex marriage was “legalized” here only last year, that should affect few New Mexico residents. Consultation with a tax professional will be wise.

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PRIVATE HEALTH INSURANCE PURCHASE SUBSIDIES

The federal Affordable Care Act authorized the establishment of Health Insurance Exchanges (a/k/a “Marketplaces”), through which individuals and families can purchase private health insurance policies.

The law also authorized financial assistance with such purchases --- premium tax credits and cost-sharing subsidies --- as well as various exceptions to a requirement to purchase insurance.

Eligibility for financial assistance, and for some exceptions, is determined by the Exchanges. Eligibility for financial assistance is based on federal tax rules, so the rights of same-sex married couples extend to such determinations by the Exchanges. The same appears to be true for exceptions.

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STATE TAXES

With respect to all New Mexico taxes, our state Supreme Court’s decision requires equal rights, protections, and responsibilities for same-sex married individuals. SCLO has not yet seen any instructions on point by the Taxation & Revenue Department, but we anticipate the Department will fully implement the Supreme Court’s ruling.

With respect to state income taxes, New Mexico state income tax return forms generally rely on a married individual’s or couple’s federal return, so individuals in same-sex marriages celebrated here on or before December 31, 2013 will almost certainly have marital rights and responsibilities for their 2013 returns.

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PERSISTENCE AND INGENUITY

Like other married couples, same-sex married individuals will need to report their family and dependents statuses to any agencies, individuals, and courts implementing pertinent state law rights. They may often need to be persistent in raising rights because it will likely take time for the knowledge of some officials, and the language in diverse forms, to catch up with these rights.

With respect to forms, recall that our state Supreme Court ruled that terms like “husband” and “wife,” etc. must be construed as applying to same-sex married individuals. In Bernalillo County at least, marriage forms have already been revised to refer to each party as “spouse.” However, until such time as myriad other forms with opposite-sex marriage terms are replaced, couples will have to use their ingenuity as to how best to complete them.

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SOME SOURCES OF FURTHER INFORMATION

The Human Rights Campaign, www.hrc.org, 617-426-1350

Gay and Lesbian Advocates & Defenders, www.glad.org, 1-800-455-4523 (legal information line), [email protected]

Social Security Administration claims processing updates --- www.socialsecurity.gov/same-sexcouples American Foundation For Equal Rights, www.afer.org, [email protected]

American Civil Liberties Union, www.aclu.org

“AFTER DOMA” Fact Sheet Series --- Produced by several groups shortly after the Windsor ruling, they discuss ways in which marital status affects many benefit programs (can be found online by putting After DOMA in your search engine)

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http://www.hrc.org/

http://www.glad.org/

mailto:[email protected]

http://www.socialsecurity.gov/same-sexcouples

http://www.afer.org/

mailto:[email protected]

http://www.aclu.org/

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The Senior Citizens’ Law Office Presents An Informational Discussion Of