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DOMA Followup

Posted on Aug. 14, 2013

Last week, I added a post (found here) regarding the CRS position on the imposition of taxes following the Windsor holding that Section 3 of DOMA was unconstitutional.  The Social Security Administration has provided internal guidance regarding its handling of the Windsor case in the form of Program Operation Manual System GN 00210.100.  Obviously, this is a completely different branch of the government, but given the overlap with the Service, it may provide some insight into how the Service is currently thinking.  The SSA guidance is fairly clear that only “married” couples will be included for benefits, and not those in civil unions.  Further, the couple must be married in a state that permits marriage, and “domiciled” at the time of the benefit request in a state that recognizes same sex marriage.  The SSA has apparently not decided how to handle the situation where a same sex couple lived in a state that did not recognize same sex marriages (for example, DE prior to July 1, 2013), and was married in a state allowing for marriage (NY), but now still lives in the original jurisdiction that has changed its laws to allow for same sex marriages (DE after July 1, 2013).  For now, benefits are being withheld but not disallowed.

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