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Same-Sex Couples Sue for VA Benefits

by Joe Whitcomb / September 27, 2014

Can Same Sex Couples Get VA Benefits? Under certain circumstances, spouses and children of disabled or deceased veterans are entitled to benefits.  Recently, an issue has arisen over what constitutes a “spouse” for benefits purposes.  More specifically, can a same-sex spouse claim benefits?  What about a same-sex domestic partner?  What impact does the state in which the couple is residing have?

Current State of the Law

Currently, the answer isn’t very clear.  In June, the Department of Veteran’s Affairs’ (VA) released a policy aimed at providing some guidance.  In short, same-sex marriages, but not civil unions or domestic partnerships, will be treated as the equivalent of traditional marriages for purposes of VA benefits.   The VA further interprets the current law to require that it look to the couples state of residence, not where they entered into (“celebrated”) the marriage, to determine whether the marriage is recognized and thus, qualified for spousal benefits.

Same Sex Couples Seek Additional Benefits

The current state of the law is based largely on interpretations from the Department of Justice (DOJ).  The DOJ’s position has been that while it feels that the above interpretation is correct based on current laws, it is not necessarily an outcome it likes.  It has thus, encouraged Congress to pass legislation broadening the definition of marriage.

Last week the American Military Partner Association (AMPA) with legal support from Morrison & Foerster, LLP and the Lambda Legal Defense & Education Fund filed suit against the Department of Veterans Affairs alleging that the VA’s interpretation of which marriages qualify for spousal benefits discriminates against same-sex couples in a way that violates the 5th Amendment “including by impinging on the fundamental right to marry and by denying equal protection on the basis of sexual orientation and sex.”  It is also alleged that the interpretation violates the landmark 2013 US Supreme Court Case, United States v. Windsor, that overturned relevant portions of the Defense of Marriage Act.

The lawsuit is seeking declaratory relief, by which the court simply declares what the rights of the parties are, without awarding damages or taking other actions.  The plaintiffs want the court to “deem eligible for spousal veterans benefits same-sex spouses who have entered into lawful marriages valid in the place of celebration.”  As a practical matter, this would mean that couples who were married in a state that recognizes same-sex marriages, but then moved to and currently reside in a state that does not, would be eligible to receive spousal benefits, assuming all other qualifications were met.

The VA has declined to comment on the lawsuit, but the legal battle won’t be easy, as Morrison & Foerster is one of the nation’s top law firms.  Either outcome will have immediate, practical consequences for filing benefits claims on behalf of spouses of disabled and deceased veterans.

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Want to Learn More?

If you’re interested in learning more about this case or veterans disability benefits generally, contact the Rocky Mountain Disability Law Group.  Our attorneys focus our practice on providing representation for Social Security and veterans disability claims.

Tags: Social Security Disability

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