With the Supreme Court extending marriage equality to same sex couples, comes all of the majesty, blessing and challenges of marriage. What does this new constitutional precedent mean for seniors? For elder rights, this means that same sex spouses will now join other married couples in enjoying the following rights, among others:
1. The right of a spouse to receive their deceased spouse’s social security check if it be the larger of the two.
2. The right to have precedence in appointment as guardian if the other spouse becomes mentally incapacitated.
3. Inheritance “elective share” rights which, in most states, including Florida, means that a spouse cannot be disinherited absent a marriage agreement otherwise.
4. The highest priority right to serve as Health Care Proxy for a spouse who has not appointed a surrogate health care decision maker.
5. The highest right of inheritance should a deceased spouse die without leaving a Will.
6. Parental rights for an adopted child since before the Court’s ruling, in many states, only one of each of a man or a woman were allowed to be the parent in a same sex union.
7. The right to spousal benefits of a Veteran including money to pay towards care of a surviving spouse of any Veteran who served during wartime.
8. The dignity to be listed as “spouse” on a death certificate. The lead plaintiff in the Supreme Court case sued for this reason. James Obergefell, the Court noted “by statute, they must remain strangers even in death, a state-imposed separation Obergefell deems ‘hurtful for the rest of time.'”
9. Absent a marriage agreement, the right to support in the event of divorce.
10. A marriage performed in one state of the United States shall be honored in every state.
11. The right to be considered a family member so that a caregiving spouse can take time off as a caregiver under medical leave acts.
12. The right to be on each other’s employer-sponsored health insurance.
13. The right to share federal estate tax exemption amounts as spouses.
14. The right to “carry over” each other’s qualified retirement plans such as IRA accounts to save on income taxes.
15. The right to file joint tax returns.
There are also some negatives:
1. If one spouse needs to qualify for government help that is based on financial need, including Medicaid and certain VA benefits, the spouse’s assets now will be counted against the applicant spouse.
2. Absent a marriage agreement, the obligation to pay alimony in the event of divorce.
3. Absent a marriage agreement, the requirement to provide for one’s surviving spouse even if one desires, for example, to leave all of one’ assets to one’s own children.
4. Unless legal documents are prepared, the spouse will have priority to serve as one’s health care and financial agent even if an incapacitated spouse would rather have a different person in charge.
5. Financial aid programs of any kind typically count both spouses’ assets. This would mean a same-sex married senior who wishes to go back to college, obtain need-based services from a social service agency, get food stamps, housing assistance or apply for any other assistance that is based on financial need may no longer qualify.
6. Sometimes being married has tax disadvantages depending on how a married couple file as opposed to two single people.
The institution of marriage is no longer a right exclusive to men and women. Soon, we will lose the term “same-sex marriage” because we will recognize that these rights and responsibilities apply to all people regardless of gender. There is now just marriage.
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