Can Florida Same Sex Partners Now Get Federal Marriage Benefits?

In yesterday’s U.S. Supreme Court Opinion striking down portions of the federal Defense of Marriage Act (“DOMA”), Justice Anthony Kennedy outlined some of the federal marriage benefits that DOMA affected:

By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive…It deprives them of the Bankruptcy Code’s special protections for domestic-support obligations…It forces them to follow a complicated procedure to file their state and federal taxes jointly…It prohibits them from being buried together in veteran’s cemeteries.

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DOMA also brings financial harm to children of same-sex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses…And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of a family security.

U.S. v. Windsor, 570 U.S. ___ (2013).

So, now that portions of DOMA have been overturned, are Florida same sex couples eligible for federal marriage benefits?

Unfortunately, as of now, there is no simple yes or no answer, but some things are clear and other things are less clear.

First, the U.S. Supreme Court did not strike down the entire DOMA. Section 2 of DOMA, which says that states do not need to recognize same sex marriages performed under the laws of another state or country, is still in effect. This means that if a gay couple gets married in New York, then move to Florida, then Florida is not required to recognize the validity of the New York same sex marriage. So no state marital benefits will be conferred on such couples.

Second, the ruling had no immediate effect on state DOMAs. So, pursuant to Florida’s Defense of Marriage Act, “the term ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the term ‘spouse’ applies only to a member of such a union.” This means that same sex couples still cannot get legally married in Florida or become eligible for federal marital benefits by entering into a union created in this state.

What is less clear is how same sex couples who are married outside of Florida but live in Florida will be treated by federal law. Part of the rationale in overturning portions of the federal DOMA was that federal law and state law should be internally consistent within a state. For example, since the minimum age of marriage in Vermont is 16, the federal government recognizes marriages of 16-year-olds in Vermont, and since the minimum age of marriage in New Hampshire is 13, the federal government recognizes marriages of 13-year-olds in New Hampshire. In contrast, even though New York recognized same sex marriages, under DOMA the federal government did not; and this internal inconsistency was struck down so marriage meant the same thing under federal and state law within New York.

However, the same rationale could be used to deny federal benefits to LGBT spouses who were married elsewhere but reside in Florida. Since state law does not recognize same sex marriage, it is possible that Florida same sex spouse spouses will not be eligible for tax and other federal marriage benefits that heterosexual married couples receive.

Whether or not Florida same sex spouses receive federal benefits mainly depends on how the Obama administration and federal agencies choose to interpret the Supreme Court’s ruling. If the Obama administration decides that the ruling only applied to same sex spouses living in states that recognize marriage equality, then Florida LGBT spouses will not receive federal benefits. If, on the other hand, President Obama and the federal agencies take the more expansive view that the ruling applies to federal benefits for married couples regardless of state of residency, then Florida same sex spouses could be receiving the same federal marriage benefits as heterosexual spouses in the very near future.

If you want to learn more about your Florida family and marital law rights, schedule a consultation with a Tampa Bay family law attorney by calling The Law Firm of Adam B. Cordover, P.A., at (813) 443-0615 or fill out our online form.

About Adam B. Cordover, Attorney-at-Law

Family Diplomacy is dedicated to helping clients restructure their families privately and respectfully. We practice exclusively in out-of-court dispute resolution, with a focus on collaborative divorce and family law, mediation, direct negotiations, and unbundled legal services. We maintain this out-of-court practice because we strongly believe that family disputes should be resolved in a private conference room, not in a hostile and public courtroom environment. This unique perspective on family law stems back to Adam B. Cordover’s experience studying International Affairs in Washington, D.C., and abroad. Adam had the rare opportunity to work closely with ambassadors and diplomats from war-torn regions around the world. He traveled around the globe, learning from diplomatic leaders as they applied dispute resolution techniques to tackle seemingly impossible conflicts. It dawned on him: If these techniques can work in the complex world of International Relations, why not Domestic Relations and Family Law? This realization lead Adam to create an exclusively out-of-court practice and to bring a more peacemaking approach to family law. In his previous role as a litigation attorney, Adam witnessed parties experience the negative emotional and financial effects that long, drawn out divorce battles can have on families. As a result, Adam has become a strong proponent of the Collaborative Process, where a structure is put in place so that life’s hardest moments do not have to be any more difficult than necessary. A thought leader in the international collaborative law community, Adam successfully spearheaded an effort of the Thirteenth Judicial Circuit to draft an administrative order safeguarding the principles of collaborative family law (just the fourth such administrative order in Florida). Adam has been featured in or interviewed about collaborative practice by the Tampa Bay Times, Tampa Tribune, Orlando Sentinel, Miami Herald, Tampa Bay Business Journal, Florida Bar News, NBC, Fox 13, Bay News 9, ABC Action News, The World of Collaborative Practice Magazine, and Spirit FM 90.5. Adam regularly speaks at professional and civic organizations locally and internationally regarding the collaborative process. Adam B. Cordover is president of Next Generation Divorce, a 501(c)(3) and Florida’s largest interdisciplinary collaborative practice group with member attorneys, mental health professionals, and financial professionals throughout Hillsborough, Pinellas, Pasco, Sarasota, and Manatee Counties. Adam is also on the Executive Board and co-chair of the Research Committee of the Collaborative Family Law Council of Florida. Further, Adam is a graduate of the inaugural class of the Leadership Academy of the International Academy of Collaborative Professionals. You can learn more about us and our services at www.FamilyDiplomacy.com. Attorney Adam B. Cordover is admitted to the Florida Bar and the United States District Court, Middle District of Florida. His office is located at 412 East Madison Street, Suite 824, Tampa, Florida 33602.

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