April 25, 2024

Your Money: How the Court’s Ruling Will Affect Same-Sex Spouses

Now that the Supreme Court has struck down the Defense of Marriage Act, some of these issues will be wiped away. The ruling makes clear that married gay couples living in states that recognize their unions will immediately gain access to more than 1,000 federal benefits, like Social Security and family leave rights. Less certain is how couples living in the remaining 37 states will fare.

The murkiness exists because federal agencies generally defer to the states to determine a couple’s marital status. Some agencies look to the laws in the state in which a couple now live, for instance, while others look to those in the state in which the couple were married.

“Unless the administration changes its practices and rules — and in a couple of cases, unless the law changes — then couples residing in a nonmarriage-equality state may not be recognized for some federal programs,” said Brian Moulton, legal director at the Human Rights Campaign. “Now that we have an opinion out, we will be anxiously awaiting what the administration will say about this and urging them to ensure that all married couples, regardless of where they live, are fully recognized.”

White House officials said that they had already begun analyzing the hundreds of relevant laws and statutes at issue and were working with the Justice Department to make benefits available as swiftly as possible.

But even if the administration were to apply the ruling broadly, gay married couples would still not be on entirely even ground with their heterosexual peers. Until other states approve the unions, couples will still need to travel to one of 13 states or the District of Columbia to get married. And they will still need to deal with a patchwork of state laws that could make it difficult to get a divorce or establish legal ties to their children.

Of the estimated 650,000 same-sex couples living together nationally, about 114,100 are legally married, according to the Williams Institute. But those figures could increase, given the court’s other ruling on Wednesday that effectively removes legal obstacles to same-sex couples marrying in California.

Here’s how many of them will be affected:

Social Security

Gay married couples living in states where same-sex marriage is legal can apply for Social Security benefits on their spouses’ earnings records, as well as survivor benefits. The Social Security Administration typically looks to the states to determine whether a person is married, which could create problems for couples that move to a state where it is not.

But it is possible that benefits would extend to couples in certain civil unions and registered domestic partnerships. The agency’s rules also say that if a person is not married — but would inherit property from a spouse as a married person would without a will according to their state’s law — that person is also entitled to benefits.

“Though still untested while DOMA has been in place, we presume that under this provision partners in a civil union or comprehensive domestic partnership (or even in a less comprehensive domestic partnership but one in which you can inherit under state law, as in Wisconsin) could claim spousal benefits,” said Susan Sommer, director of constitutional litigation at Lambda Legal, a gay rights advocacy group

Federal Income Taxes

Married couples living in states where gay marriage is legal will be able to file joint federal returns. That should save some couples money, especially when one person earns much less or does not work at all. High-income couples with two working spouses will probably pay more.

That said, filing jointly can cause even lower-income couples to become ineligible for certain tax savings like the earned-income tax credit. Ultimately, the tax consequences will be based on where couples live, their income and their particular circumstances.

Couples who would have saved significant sums by filing jointly might want to consider amending their recent tax returns. Such amendments have been permitted for the last three tax years, according to Patricia Cain, a professor at Santa Clara University School of Law and an expert on sexuality and federal tax law. More specifically, that means many taxpayers can refile for tax years 2010, 2011 and 2012. The three-year clock started on April 15 for people who filed on or before that date; those who received a filing extension have three years from the date they filed, she added.

What remains unclear is whether same-sex couples married in states where gay unions are legal could file joint federal returns if they moved to a state where they are not. “There has been a lot of discussion about whether the I.R.S. could recognize someone married in Massachusetts but living in Georgia,” Professor Cain said. “I think they have the power to do that, but no one seems to think they will do that. I think they will wait for guidance from the White House.”

The other big question is whether couples in civil unions and registered domestic partnerships can file joint returns. The I.R.S. typically looks to the taxpayer’s state of residence to determine whether someone is married. But a letter from the office of the chief counsel of the I.R.S., written in 2011, states that an opposite-sex couple in a civil union in Illinois should be treated as married for federal tax purposes. “The I.R.S. would have the power to interpret the word spouse,” Professor Cain said, adding that the Internal Revenue Code does not define the word.

Employee Benefits

This article has been revised to reflect the following correction:

Correction: June 26, 2013

An earlier version of this article misstated the number of states where gay marriage is permitted following the Supreme Court rulings on Wednesday. Gay couples marry in 13 states, not 12 states, and the District of Columbia.

Article source: http://www.nytimes.com/2013/06/27/your-money/how-the-supreme-court-ruling-will-affect-same-sex-spouses.html?partner=rss&emc=rss

Your Money: For Gay Employees, an Equalizer

These companies are reaching into their own pockets to pay for an extra tax that their gay employees owe on their partners’ health insurance — something that their married heterosexual co-workers don’t have to worry about because the federal government recognizes them as an economic unit.

To gay employees, gaining equal benefits is about more than the money. The gesture itself validates their relationship with their partners at a time when the government has not.

Most heterosexuals take for granted that they can add a spouse or children to their employer’s health plan. But gay employees with partners have that option only if they work for an organization that offers domestic partner coverage.

And even when the coverage is available, it costs gay couples more because they are taxed on the value of those benefits.

Over the last year, however, as the word has gotten out about this inequity, more companies have begun to “gross up” these workers, as the policy is known.

“It very quickly became a litmus test among employees for how welcoming their firm was,” said Daryl Herrschaft, director of the workplace project at the Human Rights Campaign. “A lot of folks were very proud of their companies and wanted to tell a lot of people, and in doing so, it sparked some competition.”

The competition has become most apparent in a handful of industries, notably law firms, big consulting companies and in Silicon Valley. More Wall Street firms, meanwhile, are said to be considering the policy. Skadden, Arps, Slate, Meagher Flom, the New York law firm, is the latest firm to follow suit. And Teach for America, the nonprofit teaching program, adopted the policy earlier this month after initially learning about it on Bucks, the personal finance blog on The New York Times Web site, which has been singling out the companies that gross up and those that do not — the New York Times Company among them.

“We realized that it was the right thing to do and we were in a position to do it, so we did,” said Rex Varner, vice president on the human assets team at Teach for America.

A small number of organizations, including Kimpton Hotels and Cisco, have had the policy in place for several years. But it wasn’t until Google started compensating its employees last June that the movement really began to take off. Apple, Facebook, Barclays, McKinsey and Bain Company are some of the prominent names that followed suit.

Even more companies have said they publicly support same-sex marriage or equal financial treatment for gay couples, but they haven’t gone as far as adopting the policy.

About 58 percent of Fortune 500 companies extend domestic partner coverage to employees with same-sex partners, according to the Human Rights Campaign. But when you look at a broader group of companies, the numbers shrink: Only about 36 percent of large companies, or those with more than 200 workers, offered the coverage in 2009, according to a Kaiser Family Foundation survey. About 20 percent of small companies offered the coverage.

Even as the number of companies that “gross up” increases, they remain a distinct minority. (The online version of this column links to our running list of companies.) In fact, a large group of major corporations joined a coalition, led by the Human Rights Campaign, that supported legislation to eliminate the tax, but most of them don’t gross up their own employees.

Another group of prominent business leaders recently signed an open letter urging New York lawmakers to legalize same-sex marriage, arguing that it would help attract and retain talent. But not everyone on that list, including Lloyd A. Blankfein of Goldman Sachs, for instance, has started to gross up employees within their own offices. That would also, arguably, help attract and retain talent. Both Goldman and Morgan Stanley (whose board chairman, John J. Mack, also signed the letter) said they were reviewing their policies. So we’ll see what happens.

One of the biggest obstacles to adopting the gross up policy has been concern about the cost and legal implications. Will people rush to sign up? Many firms, for instance, decided to make only same-sex employees with domestic partners eligible since opposite-sex couples have the option to marry.

“To spend money to make up for the inequities for our government and our governmental policies is a very significant thing,” said Ross Levi, executive director of the Empire State Pride Agenda, a gay rights organization in New York. “Companies shouldn’t have to be making up for the ways that government is failing its L.G.B.T. people and our families,” he added, referring to lesbian, gay, bisexual and transgender people. That said, he added that the private sector had historically “led government in terms of equality for L.G.B.T. people.”

Generally, it would cost an employer about $2,000 to $2,500 to gross up an employee who incurred extra taxes of $1,200 to $1,500, according to Joseph S. Adams, a partner at McDermott Will Emery who specializes in employee benefits. The numbers will vary depending on several factors, including the employee’s tax bracket and state of residence. This example assumes a 25 percent federal tax bracket (and includes rough estimates for state, local, and employment taxes for Social Security and Medicare, bringing the total tax rate to about 40 percent).

On average, a typical employee with a domestic partner will pay about $1,069 more a year in taxes than a married employee with the same coverage, according to a 2007 report by Lee Badgett, research director of the Williams Institute, which studies sexual orientation policy issues. (That figure, which is bound to be higher now given escalating health care costs, includes taxes on the benefit itself as well as the money employees would save if they could pay for their benefits using pretax dollars like heterosexual employees can. There is an exception: If the partner is considered a dependent, the extra taxes aren’t levied.)

At Barclays, which began compensating gay employees at the beginning of the year, the team working on the policy considered how it might affect their expenses. But when Barclays looked at the numbers, they concluded the cost was “not material.” And, in any case, they said it was the right thing to do.

“Too often people come with ideas requiring creativity and people start explaining obstacles about why you can’t do it,” said Jeffrey G. Davis, managing director and co-chairman of Barclays’ L.G.B.T. employee group. So they worked with their human resources department to find ways to make it as simple as possible. Instead of reimbursing employees in every paycheck, for instance, they provide a lump sum at the end of the year.

His advice to others who want to lobby their own employers is to “anticipate peoples’ concerns and questions before you go to them for approval, so you have the right answers.”

“That is the biggest part of the effort,” he said.

The Human Rights Campaign has materials on its Web site to help guide employees and their companies through the process, too.

With more companies adopting the more generous policy, others are now looking at whether they’re offering the basics for gay employees. As Cynthia Yeung, a San Francisco resident who is on the steering committee of her employer’s L.G.B.T. group, put it, “When you raise the bar, everyone has to jump a little higher to be average.”

Article source: http://feeds.nytimes.com/click.phdo?i=eb705480253616a9a46fb49a868dbdb2