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Why The U.S. Supreme Court Should Hold DOMA Unconstitutional: Don’t Forget the Children!

This is a time in history of great significance as our Supreme Court is charged with deciding whether the Defense of Marriage Act (DOMA) violates the equal protection clause of the Constitution. There is no doubt that DOMA treats LGBT individuals different from people whose marriages are recognized by law. More importantly, DOMA hurts the children of those relationships and creates a disparate impact between them and children whose parents are heterosexual. Here’s why:

  1. Many partners are unable to obtain health insurance coverage through their partner’s policy from work and end up paying more by being required to buy two policies;
  2. Children of an LGBT relationship don’t have the non-birth parent’s name on their birth certificate and therefore, aren’t entitled to Social Security benefits if that second parent dies or, becomes incapacitated. Those social security benefits can make the difference between the child and the surviving parent having financial independence or, a financial struggle to survive;
  3. Children of an LGBT relationship don’t have inheritance rights to the non-birth parent’s estate unless they are named in the Last Will & Testament or, are adopted and that is likely prohibited under state law;
  4. The LGBT partner of a veteran will not be entitled to survivor benefits as the military does not recognize these relationships;
  5. Similarly, a child with a disability whose deceased non-birth parent was a veteran will not receive veteran benefits which could mean a world of difference to that child’s future;
  6. The surviving partner of a deceased LGBT individual has no rights to social security survivor benefits. If the deceased partner was the higher wage-earner the loss of this income can result in the survivor losing financial independence including being unable to remain in the home;
  7. When a spouse who owns an I.R.A. dies the surviving spouse can ‘roll-over’ the I.R.A. to his/her own I.R.A. and it can continue to be held for the life of the surviving spouse’s beneficiaries. This helps delay the payment of income taxes. However, the surviving spouse in an LGBT relationship must take distributions from the I.R.A. over his/her remaining life expectancy which will cost the family (i.e. children) years of tax deferred growth of the I.R.A. ;
  8. The federal estate tax exemption and marital deduction minimizes as well as defers the payment of federal estate taxes but is only applicable to legally married couples. LGBT couples have the exemption but not the marital deduction and as a result end up paying more in federal estate taxes when the wealthier partner dies. Again, it is the children who suffer by receiving less of an inheritance while more money is paid for taxes.

These are just a few examples of federal benefits that are unavailable to LGBT individuals and their families. It is time for a change so that federal privilege and protections truly are available to all United States citizens and their children.

Law Office of Stephanie L. Schneider, P.A.
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