10 posts categorized "Legal"

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

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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

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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?

Sciacca
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!

July 23, 2013

Social Security Benefits Post DOMA

On Wednesday, July 17, 2013, the Social Security Administration (SSA) posted new guidance on its website regarding the implications of the Supreme Court’s Defense of Marriage Act (DOMA) ruling for Social Security benefits. 

SSA states in its press release: “We encourage individuals who believe they may be eligible for Social Security benefits to apply now, to protect against the loss of any potential benefits.”  SSA will process the claims when it receives final instructions on how to do so. 

SSA posted two related frequently asked questions on its website:

Q1:     What should I do if I think I might be eligible for benefits?

A1:     If you think you might be eligible for benefits, we encourage you to apply right away.  Applying now will preserve your filing date, which we use to determine the start of potential benefits.

Q2:     When will SSA begin paying benefits to same sex couples?

A2:     We will move swiftly to process claims once we have finalized instructions for our personnel.

Stay tuned to the SAGE website for the latest information as the federal government navigates the implications of the DOMA ruling for LGBT older adults.

 

 

June 26, 2013

SAGE Celebrates Supreme Court Decision to Overturn DOMA

2873_001Services and Advocacy for GLBT Elders (SAGE) congratulates Edie Windsor and joins her in celebrating the Supreme Court’s decision to strike down Section 3 of the Defense of Marriage Act (DOMA), paving the way for the federal government to recognize the marriages of same-sex couples. Today, the Supreme Court affirmed that loving and committed couples of all ages who marry deserve equal legal respect and treatment.

“This is a joyous moment in our country’s history, thanks in large part to Edie Windsor, who fought many hard-won battles along the way to this victory,” said Michael Adams, Executive Director of SAGE. “Older lesbian and gay couples were especially hard hit by DOMA, and their health, well-being and quality of life will now be vastly improved. Congratulations to Edie, a longtime SAGE hero, on breaking down another barrier to full equality for LGBT elders!”

Today’s ruling is a tremendous victory that means that thousands of older lesbian and gay couples will be able to better protect their families because they will finally have equal access to federal benefits, programs and protections that provide safety and support for older Americans.

Windsor’s case highlighted the real harms that DOMA causes legally married older same-sex couples. LGBT elders are less financially secure and in poorer health than American elders as a whole. Many LGBT elders, like their heterosexual peers, rely on federally provided benefits, programs and protections to help ease their financial burdens. Many of these federal benefits, from Social Security to Medicare, are founded on the presumption of marriage, yet DOMA denied access to these benefits even to legally married same-sex couples.

In another victory for marriage equality, the Supreme Court also ruled today in Hollingsworth v. Perry that the proponents of Proposition 8 do not possess legal standing to appeal the lower court rulings that invalidated Prop. 8.  The decision makes permanent the landmark Federal District Court ruling that found Prop. 8 unconstitutional, and means the swift restoration of marriage equality in California. Now, same-sex couples can legally marry in 13 states and the District of Columbia.

With these decisions adding to the momentum for marriage, SAGE will continue to stand with the majority of Americans who support marriage equality, looking toward the day when DOMA is overturned completely, same-sex couples of all ages can marry in any state, and LGBT elders have access to the same protection and support as all older Americans.

To learn more about the impact of marriage equality on LGBT older adults, see SAGE’s Marriage Equality issue page. For stories of older LGBT couples, visit SAGE Story.

June 25, 2013

A Social Security Win for Transgender People

Today’s post is from Aaron Tax, Director of Federal Government Relations, on exciting news from the Social Security Administration.

TransagingreportIn 2011 SAGE and the National Center for Transgender Equality (NCTE) launched a historic Transgender Aging Advocacy Initiative to outline the many policy and practice barriers facing transgender and gender non-conforming older adults, as well as some key solutions for addressing these barriers.  One of our top policy priorities was asking the Social Security Administration (SSA) to eliminate gender as a data field in all of its automated verification programs, and to update policies to permit an individual to change the gender designation in her or his SSA record based on a letter from a physician stating that she or he has had appropriate clinical treatment for gender transition.

Pursuant to that goal, in January of this year, the Alliance for Retired Americans and the National Committee to Preserve Social Security and Medicare worked alongside SAGE to partner with more than two dozen aging organizations from the Leadership Council of Aging organizations, in a letter to the SSA Commissioner advocating for these changes.   

And earlier this month, after years of advocacy spearheaded by NCTE, SSA announced groundbreaking advances in how transgender individuals, including transgender older adults, will be able to able to change their gender with the SSA, consistent with the requests outlined above.

As NCTE outlines:

Social Security will accept any of the following forms of evidence for a gender marker change:

  • A U.S. passport showing the correct gender,
  • A birth certificate showing the correct gender,
  • A court order recognizing the correct gender, or
  • A signed letter from a [provider] confirming that you have had appropriate clinical treatment for gender transition

NCTE provides detailed advice on its website, addressing a number of questions, including the impact of this change on Social Security benefits, health benefits, and marriage-related benefits.

For additional information, visit transequality.org and the National Resource Center on LGBT Aging.

May 8, 2013

Unleash the Power of Age

May is Older Americans Month, a proud tradition that shows our commitment to honoring the value that elders contribute to our communities. The official site encourages all of us to show our support for Older Americans Month by unleashing the power of age in our community. For the month of May, we will feature a story every Wednesday honoring the power LGBT elders possess.

Today’s post focuses on Joanne Borden, a WWII veteran, grandmother and transgender elder
who fiercely advocates for her community. Most recently, she is working alongside the Empire State Pride Agenda to raise awareness about the Gender Expression Non-Discrimination Act (GENDA) and bringing it over the finish line this legislative session.

Watch her powerful story here: 

Continue reading "Unleash the Power of Age" »

April 16, 2013

National Healthcare Decisions Day

Today marks the 6th annual National HealthCare Decisions Day.  The purpose of this day is to inspire, educate & empower the public & providers about the importance of advance care planning.

To educate the LGBT community about advance care planning, SAGE’s National Resource Center on LGBT Aging worked with Tom Sciacca, a Trusts and Estates attorney, and SAGE Legal Clinic volunteer, to create informational videos about the importance of wills, advance directives and the legal impact of marriage.  Watch the videos below and stay tuned for SAGE events later in the month around advance directives.