15 posts categorized "Legal"

April 24, 2015

Why Marriage Equality Matters for LGBT Older Adults

Rainbow-13902_640Many don’t know that same-sex spouses in non-marriage states still don’t qualify for all the same federal benefits that their different sex counterparts enjoy, simply because they are married to someone of the same sex.  This is an issue that comes up in the context of Social Security, Veterans Administration, and some Medicare benefits.   And it is all the more important for LGBT older adults who face pronounced poverty and lack of access to culturally competent healthcare.

This topic is one that our Executive Director, Michael Adams, examines in detail with his latest op-ed Why Marriage Equality Matters for Older Americans. "Marriage has proven highly effective for improving the lives of many older people," and given the unique issues our LGBT older adult population face, marriage "could be even more beneficial for older same-sex couples than it has been for older straight couples."

Adams writes: 

"Incredibly, two years after the Supreme Court struck down the Defense of Marriage Act’s prohibition on federal recognition of same-sex marriages, some married same-sex couples are still being denied federal benefits especially important to older adults.  This is because some federal agencies use the “place of domicile” rule to determine whether a couple is considered married.  As a result, bereaved widows like Kathy continue to be denied Social Security survivors’ benefits because the state in which they live does not recognize their marriage."

With this is mind, SAGE is proud to endorse a bill, the ‘‘Social Security and Medicare Parity Act of 2015,’’ being introduced this week by Representative Mark Takano (D. CA), which would provide equal spousal and survivor benefits, create more flexible marriage tenure requirements, and require the Social Security Administration to engage in more outreach to LGBT older adults so that they are made aware of new or increased benefits.

In addition, SAGE, with the assistance of Jack Nadler as the lead lawyer from the firm Squire Patton Boggs, recently filed an amicus brief related to Obergefell v. Hodges. This historic case will be heard next week and allows the U.S. Supreme Court to determine whether the U.S. Constitution requires every U.S. state to issue marriage licenses to same-sex couples, and to recognize marriages of same-sex couples lawfully performed in any other state. SAGE filed the brief with the National Committee to Preserve Social Security and Medicare, Justice in Aging, National Hispanic Council on Aging, and the American Society on Aging. To learn more about the brief and our four major arguments, click here.


April 16, 2015

Why National Healthcare Decisions Day Matters for LGBT People

1956956_10152884827600353_5665404736844718964_oIt's National Healthcare Decisions Day! A day where folks are encouraged to think about their future and examine important end-of-life documents. Have you put your end-of-life decisions in writing? Do you have a living will? Do you have a health care power of attorney?

These questions are extremely important, especially for our community. In an emergency, would you and your partner be treated as a couple? While The White House has addressed equal visitation and medical decision-making rights for same-sex couples, there are still holes in the system that leave LGBT people open to discrimination

If you don't know where to start, our National Resource Center on LGBT Aging has a number of excellent resources on their site. These include:

Remember, just signing an advance directive may not be enough! A recent blog post from our Successful Aging program highlights an issue with advance directives -- completing the documents may not provide enough protection! For the documents to be effective, treatment providers have to know of them, and what they say. Make sure you have a conversation with your loved ones and medical providers about your end-of-life documents to keep you protected.

March 30, 2015

Successful Aging: Preparation


One of the themes In SAGE’s Successful Aging program is “Preparation.” We define the term as: “Doing what you can, when you can, in advance of and addressing aging related contingencies.” This naturally includes completing wills and all the other related documents, such as living wills and advance directives. But according to a recent article in the New York Times entitled “The Trouble with Advance Directives”, completing the documents may not be preparation enough. For the documents to be effective, treatment providers have to know of them, and what they say.

The article describes a man whose advance directive specified “comfort care only, no heroics.” Not knowing the document existed, much less what it said, his doctors put him on a ventilator, performed a tracheostomy, and inserted a feeding tube. These procedures were approved by the man’s son, who was also unaware of the advance directives, and had never had a conversation with his father about the subject.

The Times article makes clear that getting the documents prepared and signed is only the first step. “Stories abound of documents misplaced, stashed in safe deposit boxes, filed in lawyers’ offices.” Or, as was the case with the case they described, the documents could be in the individual’s file, and were never discussed with family or medical staff.

Even when they’re consulted, the document’s language may prevent ready implementation. If it uses vague or outmoded language (what’s a “terminal “ condition? How long must a “vegetative state” last to qualify as “persistent”?), medical personnel may not be clear about how to proceed.

The best thing “experts say, is an ongoing series of conversations with the relatives or friends who will direct their care when they no longer can. In a crisis, doctors will turn to those people — more than to any document — to learn what the patient wants.”

Preparation, therefore, isn't just about getting a document signed. As the article concluded, “People feel reassured, even downright virtuous, when they have completed their paperwork, ‘but if the family doesn't know about it, if the medical team doesn't know about it, it might as well not exist.’”

March 19, 2015

SAGE and Aging Organizations Brief Supreme Court on Why Elders Need Marriage Equality

USSupremeCourtWestFacadeSAGE, with the assistance of Jack Nadler as the lead lawyer from the firm Squire Patton Boggs, recently filed an amicus brief (friend of the court brief) related to the upcoming marriage cases that the Supreme Court will hear on April 28, 2015. SAGE filed the brief with the National Committee to Preserve Social Security and Medicare, Justice in Aging, National Hispanic Council on Aging, and the American Society on Aging. 

In this brief, SAGE made four major arguments: 


  1. Excluding same-sex couples from marriage deprives them of access to federal, state, and private benefits that are especially important for older adults;
  2. denial of the right to marry deprives older same-sex couples of the intangible benefits that marriage provides to older different sex couples;
  3. allowing older different sex couples to marry despite being non-procreative, while forbidding older same-sex couples from marrying because they are non-procreative, is self-evidently irrational; and
  4. older same-sex couples should not have to wait any longer to enjoy the benefits of marriage. 


Our hope is that our unique aging lens will provide a compelling view of marriage to the justices – and that perhaps – our brief will make a difference in bringing us closer to the day when same-sex couples can age with access to benefits, services, and supports, equal to their different sex counterparts.

Read a copy of the brief and our press release on the SAGE site.

This post was written by Aaron Tax, SAGE's Director of Federal Relations.

September 22, 2014

What’s New on the National Stage

SAGE continues to lead federal efforts to improve the lives of LGBT older people, alongside our national partner organizations in the LGBT and aging fields. This summer, we collaborated with other advocates to win Medicare coverage for transgender older people, FMLA benefits for same-sex couples and an executive order that extends more protections to LGBT people. Learn more about new federal policy updates below.

Executive Order to protect LGBT Workers
SAGE was privileged to be in the room with President Barack Obama on July 21, when, with the stroke of a pen, he put in place protections that will help millions of lesbian, gay, bisexual and transgender (LGBT) older adults.  In the executive order that he signed that day, he ensured that transgender federal workers are protected against job discrimination based on gender identity.  He also ensured that LGBT employees of federal contractors will be protected against discrimination, which, according to the UCLA’s William’s Institute, protects 34 million of these workers today. Many LGBT older adults, after facing a lifetime of discrimination and lower earnings across the lifespan, continue to workto maintain their economic security.  We welcome the news that this generation--who fought to help many LGBT people out of “the closet”--will be able to bring their full selves to work, at more workplaces, without fear of discrimination.

Medicare Will Cover Transition-Related Care
In May, the U.S. Department of Health and Human Services (HHS) Department Appeals Board (DAB), an independent federal appeals board, ruled that Medicare must cover medically necessary care for individuals with gender dysphoria, just as it does for those with other medical conditions.  In short, Medicare will now cover transition-related care for transgender older adults.  SAGE applauds our advocacy partners—GLAD, the ACLU, Lambda Legal, and NCLR—for  their tireless advocacy on this issue.  It was a life-changing victory for transgender older adults, who are finally on a more level playing field with other Medicare recipients.

Family and Medical Leave Act (FMLA) Benefits Extended to Same Sex Spouses
The 1993 Family and Medical Leave Act (FMLA) allows eligible employees to take 12 weeks of leave from their jobs without pay for family and medical reasons.  With the Windsor decision in place (the Supreme Court case that cleared the way for the federal government to recognize same-sex marriages), the Department of Labor (DOL) announced in August 2013 that it would recognize same-sex marriages, but only those of couples who live in a state that recognizes their marriage.  In June of this year, the DOL announced a proposed “place of celebration” rule, meaning regardless of where a couple lives or moves, the DOL would recognize that same-sex marriage for FMLA purposes.  If and when the rule becomes final, it would ensure that LGBT individuals who take professional leave to care for a sick spouse will enjoy job security—and a little more peace of mind. 

Social Security

With the Windsor decision in hand, President Obama directed the Department of Justice (DOJ) to review every federal law, rule, policy and practice implicating marriage. On June 20, 2014, nearly a year after the date of the Windsor decision, DOJ completed its comprehensive, year-long review, providing guidance to federal agencies on Windsor implementation.  What does this mean? According to the review, all federal agencies have now implemented Windsor, meaning they are treating married same-sex and opposite-sex couples the same, to the fullest extent possible, under the law.

But what about Social Security benefits for same-sex couples? Here are a few points to help answer this complex question:


  • If you are married and living in a state that recognizes marriage equality, generally speaking, SSA (the Social Security Administration) will recognize your marriage.
  • If you are in a Civil Union or Registered Domestic Partnership and living in a state that provides those forms of relationship recognition, generally speaking, SSA is going to recognize your relationship as if you were married.
  • If you are married and were living in a state that recognizes marriage equality when you applied for Social Security benefits, or while your application was pending, SSA will honor your marriage even if you move.
  • If, however, none of the above apply (for example, if you’re married but have always been living in a state that does not recognize marriage equality), you will not receive spousal SSA benefits.  For example, if you have always been living in Biloxi, Mississippi, but flew to Washington, DC, just to get married, SSA will not recognize your marriage.


One final important message on this issue:  regardless of where you live, we recommend you apply for spousal Social Security benefits, as new or increased benefits will be granted retroactively.  If the law changes through legislation or litigation, you should get SSA benefits retroactive to the date of your application.

--Posted by Aaron Tax

August 14, 2014

Happy Birthday Social Security! Talking with Congressman Mark Takano (D-CA)

TakanoOn the occasion of Social Security’s 79th birthday on August 14th, we had a conversation with Congressman Mark Takano (D-CA) about how the Windsor decision impacted Social Security benefits for older adults. Last month, Takano introduced the Social Security and Medicare Parity Act, which would help couples in non-marriage states qualify for benefits even if the state they reside in doesn’t recognize the marriage.

Why is Social Security such an important program for older adults?

Millions of Americans contribute to Social Security during their working years and deserve to receive the benefits they have earned to help them manage their retirement. With the decline of defined benefit pension plans, Social Security benefits are a becoming even more of a lifeline for seniors from all walks of life. No senior should be denied these full benefits because of who they love.

Aren’t many LGBT older adults very well-off?   Do they even need Social Security?   In other words, why is Social Security so important for married same-sex couples?

The myth that LGBT seniors are better off is patently false. Statistics show that a lifetime of discrimination actually hurts earning power, makes LGBT seniors less likely to have a spouse’s income they can count on, and less likely to have children to help care for them in their old age. LGBT couples, just like all other Americans, have paid into Social Security and Medicare and deserve to receive the benefits they have earned in their retirement.

Didn’t the Windsor decision ensure that the federal government would treat married same-sex couples equally, regardless of where they live in the United States?

The Windsor decision was an historical day that paved the way for equal rights for all Americans no matter who they love. However, Windsor could not change everything overnight. While it overturned section three of the Defense of Marriage Act, the Department of Justice just concluded a year-long review of what the decision means for other federal statutes. While I and others continue to believe that the Social Security Administration has the discretion to provide spousal and survivor benefits regardless of where a same-sex couple lives, the Justice Department and the Social Security Administration have concluded that eligibility for benefits be based on the state in which the couple resides. That means that couples living in non-marriage states are still prevented from getting the benefits they have earned.

Can you please explain what issues married same-sex couples who live in non-marriage states currently face?  

Not only are couples in non-marriage states ineligible for certain Social Security and Medicare benefits, but a whole other host of federal benefits and protections. They don’t yet qualify for family medical leave to take care of a sick spouse, and veterans and their spouses don't receive the same spousal and survivor benefits as heterosexual couples.

Continue reading "Happy Birthday Social Security! Talking with Congressman Mark Takano (D-CA)" »

July 23, 2014

President Obama Signs Executive Order on LGBT Job Discrimination


SAGE was privileged to be in the room with President Obama on July 21, 2014, when, with the stroke of a pen, he put in place protections that will help countless of LGBT older adults.  In the executive order he signed, he ensured that transgender federal workers would join their lesbian, gay, and bisexual brothers and sisters in being protected against job discrimination based on their gender identity.   He also ensured that LGBT employees of federal contractors will be protected against discrimination.  Many LGBT older adults, after facing a life of discrimination and lower earnings, continue to work, to maintain their economic security.  As a result, it is welcome news that this generation, who fought to get out of the closet, will be able to bring their full selves to work, at more workplaces, without fear of discrimination.

--Posted by Aaron Tax

June 20, 2014

Policy Update: FMLA Benefits Extended to Same Sex Spouses

Family illness can cause tremendous stress for caretakers, both physically and emotionally. The Family Medical Leave Act (FMLA) of 1993 addresses this issue directly by entitling eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.

Millions of Americans have benefited from these provisions, but for many LGBT workers these benefits have historically been inaccessible as the government has not recognized their relationships. This challenge is exacerbated for older LGBT adults, who face striking health disparities: increased risk for certain cancers, a greater likelihood of delaying medical care, and higher rates of chronic mental and physical health conditions, including HIV/AIDS.

Given these historic challenges, today’s announcement by the U.S. Secretary of Labor marks a tremendous victory for LGBT older adults.

The announcement from Secretary Thomas E. Perez proposes a rule “extending the protections of the Family and Medical Leave Act to all eligible employees in legal same-sex marriages regardless of where they live.”

This means that same sex spouses married in any state would have access to the same benefits as their heterosexual counterparts—regardless of where they live. So a couple married in Massachusetts but living in a state which does not recognize their marriage would still be covered by the protections provided by the FMLA. 

According to today's statement from the Department of Labor:

Secretary Perez is proposing this rule in light of the Supreme Court’s decision in United States v. Windsor, in which the court struck down the Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law.

The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver,” said Secretary Perez. “Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.

The extension of these benefits to same sex spouses will make a significant difference in the health and well-being of LGBT older adults across the United States—regardless of where they live.

To read the full text of the announcement, visit the Department of Labor’s web site online here

-- Posted by Kira Garcia

April 16, 2014

National Health Care Decisions Day


If you became unable to speak for yourself, how would medical decisions be made for you? We'll consider that question and others on April 16th, the 7th Annual National Healthcare Decisions Day (NHDD), a nationwide event promoting the importance of healthcare choices and advance directives. The LGBT community is especially vulnerable in this regard, since many hospitals restrict visitation rights to narrow interpretations of family. This day is a reminder for us all to take steps to ensure that we make our wishes clear about who may visit us and make medical decisions on our behalf in times of crisis.

  • If you don't have advance directives in place, learn how to obtain them here.
  • If you live in New York, please attend our NHDD event on April 29th. A volunteer legal team will be on hand to help navigate advance directive forms. Find out more information here.
  • For more information on the importance of advance directives and other legal documents, visit the National Resource Center on LGBT Aging's resource page.

Watch a video from NHDD explaining advance directives below.

NHDD Speak Up Video from NHDD on Vimeo.

August 27, 2013

What Does the DOMA Decision Mean for Same-Sex Couples?

Tom Sciacca, Esq.
Today’s guest author is Thomas Sciacca, a principal at the Law Offices of Thomas Sciacca, PLLC, and a longtime SAGE volunteer and supporter. In the wake of the Supreme Court decisions on the Defense of Marriage Act (DOMA) and Proposition 8, many same-sex couples are wondering how the law will impact them. Tom offers insights on the decisions, and five points for couples to consider in an article originally posted on SAGE’s National Resource Center on LGBT Aging. Below is an excerpt from the article; read the full piece here. Note: While these tips are aimed at New Yorkers, the main points here apply to older same-sex couples in other states where marriage equality has passed.


On June 26, 2013, the United States Supreme Court ruled that Section 3 of the so-called Defense of Marriage Act (DOMA) violated the Equal Protection Clause of the United States Constitution. In ruling for the basic equality and dignity of all people, the Court held that the Federal government could not lawfully discriminate against same-sex married couples by declining to provide them with the same rights Federal law affords to opposite-sex married couples.

Bands[T]he Court’s recent decisions are certainly cause for celebration. However, the savvy reader may inquire—how does this decision affect the legal affairs of the legally-married LGBT New Yorker? To respond to that, I humbly offer five legal tips that should help start an informed conversation between you and your attorney, financial advisor, and tax preparer:

1. If you haven’t already done so, now is the time to consider getting married. Under the yoke of DOMA, LGBT married couples faced a level of discriminatory hurdles while interacting with the Federal government. New York State recognized their marriages and afforded them all available rights, while the Federal government regarded them differently. With the Supreme Court ruling Section 3 of DOMA unconstitutional, much of the disparate treatment has fallen by the wayside.

2. Same-sex couples can now file joint Federal income tax returns. Here is something you never had before—a reason to get excited when filing your 1040! Since 2011, New York’s same-sex married couples could file a joint NYS income tax return, but not a joint Federal income tax return. Often, this resulted in couples preparing two sets of tax returns listing different marital status on each, with all the resulting frustration and cost. Effective immediately same-sex married couples can file a single return, or, if it is to their financial benefit, file as “married filing separately.” Couples should also review their previous Federal income tax returns (since their marriage)—it may be in their interest to file amended Federal income tax returns if it will result in a larger refund. Additionally, a surviving spouse may wish to file an amended Federal estate tax return if it will produce a refund.

3. Be wary when traveling or relocating to a state that does not recognize marriage equality. As mentioned above, the Supreme Court only invalidated Section 3 of DOMA, which regulates Federal recognition of valid same-sex marriages. It did not invalidate Section 2, which allows states to not recognize your marriage, and, essentially, deny you with all of the rights of a married couple. Think twice before moving to a state that bans same-sex marriage, and, if you do, consult your attorney to make sure you have a Will, Power of Attorney, Health Care Proxy, and Living Will in place to protect your legal status. Sometimes, the lost civil liberties greatly outweigh the lower taxes or nicer weather.

4. Check beneficiaries on retirement accounts. A Federal law known as ERISA governs all retirement accounts, including most 401(k), 403(b), SEP, SIMPLE, and IRA programs. This law requires that your spouse inherit a minimum of half of the qualified retirement account, unless he or she consents to an alternate distribution by signing the beneficiary designation form before a Notary Public. Often, people choose to name non-spouse beneficiaries (younger relatives, charities, etc.) on these accounts because of the significant tax advantages offered by such a designation. If those are your wishes, make sure your spouse signs the consent. In the past, this was not necessary, as DOMA prevented the Federal government from recognizing all same-sex relationships. A simple check on the form will save hassle/aggravation later.

5. Review your Wills. In general, one should review his or her Will (and other estate planning documents) every 2-3 years. Under New York law, a subsequent marriage may automatically revoke some or all of an existing Will. In general, a Will that lists an individual by name is more effective than one that lists an individual by relationship (such as “to my domestic partner”—especially if that person is now a spouse). Spend a few minutes reviewing these documents, and speak to your attorney about whether or not they still reflect your wishes fully. Now that same-sex spouses can transfer assets between each other free of estate, gift, and generation-skipping transfer tax, now may also be a good time to review the tax planning in those documents to ensure you can take advantage of all available rules.

Of course, these tips are not a substitute for a meeting with the appropriate professional, who can tailor his or her advice to your specific needs.

And remember—it is a time to celebrate!