According to the United States Government Accountability Office (GAO), there are 1,138 statutory provisions in which marital status is a factor in determining benefits, rights, and privileges. These rights were a key issue in the debate over federal recognition of same-sex marriage. Under the 1996 Defense of Marriage Act (DOMA), the federal government was prohibited from recognizing same-sex couples who were lawfully married under the laws of their state. The conflict between this definition and the Due Process Clause of the Fifth Amendment to the Constitution led the U.S. Supreme Court to rule DOMA unconstitutional on June 26, 2013, in the case of United States v. Windsor.
Prior to the enactment of DOMA, the GAO identified 1,049 federal statutory provisions in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor. An update was published in 2004 by the GAO covering the period between September 21, 1996 (when DOMA was signed into law), and December 31, 2003. The update identified 120 new statutory provisions involving marital status, and 31 statutory provisions involving marital status repealed or amended in such a way as to eliminate marital status as a factor.
On June 26, 2015, in the case of Obergefell v. Hodges, the Supreme Court ruled that marriage is a fundamental right guaranteed to all citizens, and thus legalized same-sex marriage nationwide.
Rights and benefits
Right to benefits while married:Employment assistance and transitional services for spouses of members being separated from military service; continued commissary privilegesPer diem payment to spouse for federal civil service employees when relocatingIndian Health Service care for spouses of Native Americans (in some circumstances)Sponsor husband/wife for immigration benefitsLarger benefits under some programs if married, including:Veteran's disabilitySupplemental Security IncomeDisability payments for federal employeesMedicaidProperty tax exemption for homes of totally disabled veteransIncome tax deductions, credits, rates exemption, and estimatesWages of an employee working for one's spouse are exempt from federal unemployment taxJoint and family-related rights:Joint filing of bankruptcy permittedJoint parenting rights, such as access to children's school recordsFamily visitation rights for the spouse and non-biological children, such as to visit a spouse in a hospital or prisonNext-of-kin status for emergency medical decisions or filing wrongful death claimsCustodial rights to children, shared property, child support, and alimony after divorceDomestic violence interventionAccess to "family only" services, such as reduced rate memberships to clubs & organizations or residency in certain neighborhoodsPreferential hiring for spouses of veterans in government jobsTax-free transfer of property between spouses (including on death) and exemption from "due-on-sale" clauses.Special consideration to spouses of citizens and resident aliensThreats against spouses of various federal employees is a federal crimeRight to continue living on land purchased from spouse by National Park Service when easement granted to spouseCourt notice of probate proceedingsDomestic violence protection ordersExisting homestead lease continuation of rightsRegulation of condominium sales to owner-occupants exemptionFuneral and bereavement leaveJoint adoption and foster careJoint filing of taxes (see filing status)Insurance licenses, coverage, eligibility, and benefits organization of mutual benefits societyLegal status with stepchildrenMaking spousal medical decisionsSpousal non-resident tuition differential waiverPermission to make funeral arrangements for a deceased spouse, including burial or cremationRight of survivorship of custodial trustRight to change surname upon marriageRight to enter into prenuptial agreementRight to inheritance of propertySpousal privilege in court cases (the marital confidences privilege and the spousal testimonial privilege)For those divorced or widowed, the right to many of ex- or late spouse's benefits, including:Social Security pensionVeteran's pensions, indemnity compensation for service-connected deaths, medical care, and nursing home care, right to burial in veterans' cemeteries, educational assistance, and housingsurvivor benefits for federal employeesSurvivor benefits for spouses of longshoremen, harbor workers, railroad workersAdditional benefits to spouses of coal miners who die of black lung disease$100,000 to spouse of any public safety officer killed in the line of dutyContinuation of employer-sponsored health benefitsRenewal and termination rights to spouse's copyrights on death of spouseContinued water rights of spouse in some circumstancesPayment of wages and workers compensation benefits after worker deathMaking, revoking, and objecting to post-mortem anatomical giftsSpousal income and assets are counted in determining need in many forms of government assistance, including:Veteran's medical and home care benefitsHousing assistanceHousing loans for veteransChild's education loansEducational loan repayment scheduleAgricultural price supports and loansEligibility for federal matching campaign fundsIneligible for National Affordable Housing program if spouse ever purchased a home:Subject to conflict-of-interest rules for many government and government-related jobsIneligible to receive various survivor benefits upon remarriageProviding financial support for raising children born of the marriageThere are some laws that either benefit or penalize married couples over single people, depending upon their own circumstances:
Marriage penalty/bonusChanging beneficiaries in a retirement plan or waiving the joint and survivor annuity form of retirement benefit requires written spousal consentWages can be garnished at a maximum of 60% (instead of the normal 25% limit) if the garnishing is for alimony or child supportIn addition, community-property states frequently have forms of ownership that allow a full basis step-up on one's own share of community property on the death of a spouse (in addition to the normal step-up on spouse's assets).
Following the 2004 GAO report at least one bill, the Uniting American Families Act, has been proposed to attempt to remedy some of the differences in rights between same-sex partnerships and marriages.
