A holistic approach to planning for the aging same-sex couple: special considerations in light of the U.S. v. Windsor decision.

Author:Barnhardt, Melissa Lader

    On June 26, 2013, the US Supreme Court found Section 3 of the Federal Defense of Marriage Act (1) ("DOMA") unconstitutional. (2) DOMA was signed into law in 1996 by President Clinton) DOMA came into existence as fears arose that the state of Hawaii would start a trend as the first state to recognize same-sex marriage. DOMA was created to avert "an assault against traditional heterosexual marriage laws." (4) Now that this section has been struck down, married members of the Lesbian, Gay, Bisexual, and Transgendered ("LGBT") community will be privy to the same federal benefits that their heterosexual colleagues have historically enjoyed depending on the state they live in. These benefits could provide some additional monies and protections during the golden years.


      Despite the general belief that older LGBT adults are affluent, this population tends to be less affluent and less financially secure than most American seniors. Around half of all lesbians and gay men between the ages of fifty to fifty-nine earn less than $39,000 per year; 20% earn less than $26,000 per year. (5) Many have suffered throughout their working years some form of discrimination if their sexual orientation became known or was suspected, and as a result, many were unable to maintain consistent employment. Around one-half of these seniors have a disability and 13% "have been denied healthcare" or have received poor quality of care. (6) These factors also have an effect on the quality of an elder's older years both financially and psychologically. In 2011, there were roughly 41.4 million Americans age sixty-five and over, and this figure includes 1.5 million LGBT older adults. (7) There are approximately 2.4 million LGBT adults over the age of fifty-five. (8) Of same-sex couples, 11.8% of these couples include a partner fifty-five or older, while 9.4% consist of two seniors. (9) The number of LGBT seniors is expected to double by the year 2030. (10) In fact, it is estimated that older Americans will top 90 million and outnumber children under the age of 18 for the first time in US history by 2056. (11) The creation of the National Resource Center on LGBT Aging ("The Center") in 2010 is an indicator of the necessity of training for providers tailored to the unique needs and challenges of older members of this community. The Center provides a technical resource center to improve the quality of services and support offered to lesbian, gay, bisexual and transgender older adults. The organization is also key to identifying and compiling data on the older population.

      However, the statistics for the LGBT community are not entirely reliable, as many older members of the community continue to remain "invisible." Older LGBT adults still have difficulty discussing, or in some cases acknowledging, their sexual orientation. Having suffered stigmatization, various forms of abuse, and allegations of criminality, moral turpitude, and mental illness as a result of their sexual orientation and/or gender identity, many remain reluctant to reveal their sexual orientation. "Coming out" later in life is a scary proposition despite its apparent healing effect. As society's attitudes toward same-sex marriage and marriage in general continue to evolve, so should the willingness of members of this community to stand up and be counted.


      According to Gallup, in 1996, 68% of all Americans were opposed to gay marriage. (12) Polls taken during the week of the DOMA ruling indicated that 53% of all Americans were in favor of same-sex marriage and in the two weeks following the ruling, that data has increased two percentage points. (13) This is a substantial increase in support, even from recent years. In 2009, 30% of Americans favored civil unions but did not support same-sex marriage. (14) This data also reflected an uptick in support, with only 24% responding in a similar fashion in 2003. (15)

      Massachusetts, not Hawaii, (as originally assumed) was the first state to legalize same-sex marriage in 2003. The Massachusetts Supreme Judicial Court ordered it legalized in 2003 and marriages began in 2004. (16) Sixteen other states followed suit together with the District of Columbia. Those states are: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, New Mexico, Maine, Maryland, Minnesota, New Hampshire, New Jersey, New York, Rhode Island, Vermont and Washington. (17) Most states, however, either implemented a state constitutional ban or a state version of DOMA to ban same-sex marriage. (18)

      Civil unions were designed by states to confer "marriage-like" rights and responsibilities for same-sex couples. However, civil unions confer only state rights, not federal rights, and are generally not recognized outside the state where the union occurred. Thus, the contention that civil unions are "separate and unequal." Civil unions are legal in the state of Colorado.

      Domestic partnerships, on the other hand, were not specifically designed for LGBT individuals only. Domestic partnerships, like civil unions, confer some rights through the state to both same-sex and opposite-sex partners and no federal rights. Because they are creatures of state law, the rights conferred by domestic partnerships vary widely from state to state. The Supreme Court ruling in United States v. Windsor (19) does not change the landscape of rights created under domestic partnerships, and thus it is imperative that those living in a state that recognizes domestic partnerships seek legal counsel prior to making any planning decisions. Both the civil union and the domestic partnership, of which there is little distinction aside from the fact that states tend to allow one or the other, served to create a separate status, an unsatisfactory alternative to the sanctity and status of marriage. In fact, proper planning is imperative regardless of whether one lives in a state that recognizes marriage, civil unions, and/or domestic partnerships.

      The purpose of this article is to provide a basis of planning for the LGBT community in light of the opportunities provided by the recent Windsor Supreme Court ruling. Indeed, this landmark decision will provide the aging LGBT population with benefits that have been previously denied due to the fact that same-sex marriage was not recognized under DOMA. This article will provide a brief overview of (a) the history of DOMA, (20) (b) a review of Windsor and Hollingsworth v. Perry (21) as well as the impact of those decisions, (22) (c) the effects of the decision on Supplemental Security Income ("SSI"), Social Security Disability Insurance ("SSDI"), Medicaid and other governmental benefits, (23) and finally, (d) special considerations on Advance Directives and estate planning issues. (24)


    On September 26, 1996, President Clinton signed DOMA, which amended The Dictionary Act (25) definition of marriage under Section 3 of DOMA:

    In determining the meaning of any Act of Congress, or of any ruling, regulation or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife. (26) Section 2 of DOMA also amended another provision of the United States Code on Judiciary and Judicial Procedure (27) as follows:

    No state, territory or possession of the United States, or Indian Tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory possession, or tribe, or a right or claim arising from such relationship. (28) The long title of the Act, "An Act to Define and Protect the Institution of Marriage," (29) coupled with its direct impact on same-sex couples and their children, by its very nature interjects a form of bullying, disrespect, and discrimination. The legislative history, including the Judiciary Committee reports for the 104th Congress House of Representatives, provides the basis for DOMA: the fear of the potential expansion of the definition of marriage in the state of Hawaii (30) and its potential impact on other states due to the Full Faith and Credit Clause. (31) The House of Representatives Report details the lawsuit of Baehr v. Lewin. (32) It was the first time that a state was moving forward to allow same-sex couples to obtain a license to get married. Opponents of same-sex marriage were fearful that the sanctity of marriage and the potential enforcement of the marriage outside of Hawaii would have far reaching consequences in other states that may have opposing policies against same-sex marriage. (33) In Baehr, three same-sex couples applied for marriage licenses, which were denied, leading the couples to file suit in state court, where the court granted the State's motion for judgment on the pleadings. (34) The couples then filed an appeal to the Hawaii Supreme Court, which reversed the decision stating that the denial of marriage licenses to same-sex couples was presumptively unconstitutional discrimination based on sex. The court remanded the case to the trial court with instructions to apply a strict scrutiny standard compelling the state to show proof that they had a state purpose that was narrowly drawn so as to not abridge constitutional guarantees. (35)

    This case was the impetus for DOMA and the discussion ensued regarding the potential repercussions and necessity for legislative involvement over judicial action prior to Hawaii or any other state allowing marriages for same-sex couples. The House Report goes on to state the reasoning...

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