Update July 2015: The Supreme Court ruling on June 26, 2015 declared that states cannot ban same-sex marriage, which further opened the door to married same-sex partners to be eligible to receive equal benefits available to heterosexual spouses.
Spousal benefits have been equal for all serving military members since 2013. However, VA benefits for those in same-sex marriages were limited for veterans residing in certain states because the law only recognized marriage in the state where the veteran resides. VA benefits were not available to same-sex spouses who resided in states that did not recognize same-sex marriage, even if they had a valid marriage certificate.
Again, this was not a malicious act by the VA. This was due to the language of the law, US Code Title 38, Section 103 C, which specifically recognized marriage in the state where the veteran resides. The recent Supreme Court ruling now requires all states to recognize same-sex marriages, permitting the VA to extend these benefits to all veterans, regardless of state of residence. See below for an update on how this will roll out.
Overview of Benefits for Same-Sex Couples
When the Supreme Court declared section section 3 of the Defense of Marriage Act unconstitutional on June 26, 2013, it opened the doors for federal recognition of same-sex marriages. And this federal recognition meant that same-sex spouses of federal employees would be eligible to receive the same benefits as spouses of heterosexual employees. This, of course, also included military members.
The Department of Defense extended benefits to same-sex spouses of uniformed service members and DoD civilian employees after the Supreme Court ruling, provided the servicemember was able to provide a valid marriage certificate (a recognized civil union is not sufficient for benefits; there must be a marriage certificate).
While the military was quick to extend benefits to legally married servicemembers and their same-sex spouses, The Department of Veterans Affairs could only legally extend the benefits if the veteran had a legally recognized marriage certificate and resided in a state that recognized same-sex marriages (due to the wording in the US Code).
Military Benefits Available to Same-Sex Spouses
The repealing of the DOMA laws permitted all military members with same-sex spouses to receive the same benefits as servicemembers with heterosexual spouses – provided they have a valid marriage certificate. These benefits include a dependent ID card, TRICARE access, Basic Allowance for Housing at the Dependent Rate, Family Separation Allowance during TDYs and deployments, and other benefits.
These benefits were made retroactive to the Supreme Court’s decision on June 26, 2013, or the date of marriage if the marriage was held after the date of the Supreme Court decision.
Non-Chargeable Leave for Same-Sex Marriage if Residing in a State Where Same-Sex Marriages Are Not Legal. The DoD also granted servicemembers non-chargeable leave if they wanted to marry a same-sex partner, but resided in a state where this was not permitted by law. Here is a quote from the DoD statement:
We recognize that same-sex military couples who are not stationed in a jurisdiction that permits same-sex marriage would have to travel to another jurisdiction to marry. That is why the department will implement policies to allow military personnel in such a relationship non-chargeable leave for the purpose of travelling (sic) to a jurisdiction where such a marriage may occur. This will provide accelerated access to the full range of benefits offered to married military couples throughout the department, and help level the playing field between opposite-sex and same-sex couples seeking to be married. (Source)
Further guidance requires servicemembers to reside at least 100 miles or further from a state where same-sex marriage is legal. Contact your base personnel section for further guidance.
VA Benefits for Veterans & Same-Sex Spouses
Equal benefits are now available for veterans who are in a same-sex marriage, provided they have a legal marriage certificate. Previously, the law required the veterans and spouse to have a legal marriage certificate and reside in a state that recognizes same-sex marriages. This was overturned in the June 26, 2015 Supreme Court decision requiring all states to recognize same-sex marriages.
Benefits: Same-sex married couples now have equal rights with veterans, and are eligible to share veterans pensions, survivor benefits, VA home loans, medical coverage, burial benefits, transfers of GI Bill benefits, and same-sex spouses will count as dependents for service-connected disability compensation. Learn how to add a dependent to your VA compensation claim.
Note: The VA is in the process of drafting guidance to provide benefits to veterans and their same-sex spouses who reside in states that did not previously recognize same-sex marriages. in the mean time, they have stopped processing certain claims for affected veterans to avoid making errors based on previous policy. If you have specific questions regarding your claim, you should contact the VA or a benefits counselor at a Veterans Service Organization for further assistance.