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California same-sex partners will benefit from federal rule changes

In cases where couples are considering ending their marriage, the valuation and division of pensions and retirement plans is often an issue. But for same-sex domestic partners of federal employees in California, the right to receive those retirement benefits in the first place has been clouded in recent years by the political and judicial controversy over gay marriage and divorce.

In late July the Obama administration took an important step in making the availability of federal retirement benefits more equitable. The federal Defense of Marriage Act makes those benefits unavailable to spouses of federal employees in a same-sex marriage. But the administration has taken the position that the restrictions of DOMA do not apply to unmarried domestic partners of the same sex.

Accordingly, the administration made some changes to the rules governing these benefits, in order to make them more easily available to same-sex domestic partners. First, the administration added same-sex domestic partners to the list of people entitled to a share of federal employees' retirement benefits. Second, the administration amended a rule to allow children of such a partnership to qualify for a federal child-care subsidy in some circumstances. Finally, the administration will now permit the children of these unions to be covered under the federal employee's dental and vision insurance.

With respect to same-sex marriages, the Obama administration has taken the position that the ban on federal benefits for spouses in valid same-sex marriages is unconstitutional, and has appealed two cases to the U.S. Supreme Court seeking such a ruling. At the same time, the administration continues to enforce the ban, because it is obligated to faithfully execute the laws of the land.

The rule changes for domestic partners are particularly important for California same-sex domestic partners, due to the current unavailability of same-sex marriage. Although Proposition 8, which made same sex-marriage illegal in California, has been found unconstitutional by a federal appeals court, that decision has been stayed pending further appeals. This is an area of the law that is evolving rapidly.

Source: Los Angeles Times, "Benefits rules eased on same-sex partners of federal employees," David G. Savage, July 21, 2012

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