More same-sex couples eligible for survivor benefits after VA policy change

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Same-sex spouses who were in a long-term relationship with a veteran but were unable to legally marry before 2015 are now eligible for survivor benefits under a policy change announced by the department. of Veterans Affairs.

The change applies to survivors who — due to prohibitions before a Supreme Court ruling that year making same-sex marriage a constitutional right — weren’t married long enough before their spouse’s death to qualify for benefits. benefits under the previous policy.

“VA is closing a gap in benefits for surviving spouses of LGBTQ+ veterans, righting a wrong that is a legacy of the discriminatory federal ban on same-sex marriage,” VA Secretary Denis McDonough said in a statement Oct. 13. mission to serve all veterans – including LGTBQ+ veterans – as they have served our country, and this decision is a key part of that effort. »

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By law, couples must be married for at least one year for the surviving spouse to be eligible for benefits such as VA Survivors Pension or Dependency and Indemnity Compensation. Rates increase if a couple has been married for at least eight years.

But before the 2015 Supreme Court decision in Obergefell v. Hodges, same-sex couples in more than a dozen states were barred from marriage, and many states that previously allowed same-sex marriage only legalized it a few years earlier. .

Under the new VA policy, survivors who married after Obergefell’s decision in June 2015 and can establish that they had a ‘marriage-type’ relationship with their now deceased spouse before that will be eligible for benefits. . Some examples of how to prove a marriage-like relationship include a commitment ceremony, a joint bank account, or the joint purchase of a home, the VA said in a press release.

The policy change took effect immediately, so newly eligible spouses can apply now. Anyone who applies within the next year will receive benefits backdated to October 11, 2022, but benefits are not retroactive beyond that.

The announcement is the latest move by the Biden administration aimed at making up for past anti-LGBTQ policies and laws. Last year, the VA said veterans who received other-than-honorable discharges solely for their sexual orientation under the Army’s now-defunct “Don’t Ask, Don’t Tell” policy would be eligible for receive all the benefits.

The change for survivor benefits comes after 41 Democratic senators sent a letter to McDonough earlier this year calling on him to ensure same-sex partners are eligible for benefits if they were unable to. get married before Obergefell.

“It is unacceptable to me that surviving partners of veterans have been denied the VA care, benefits and services they deserve because they were not allowed to marry,” the senator said. Patty Murray, D-Wash., who organized the July letter, said in a statement last week. “I’ve been fighting for years to break down barriers like these for our veterans, and I’m glad VA has taken this important step – but our job is not done.”

The VA has also faced at least one legal challenge over survivor benefits for LGBTQ spouses. Last year, Larry Vilord appealed to the United States Court of Appeals for Veterans’ Claims when he was denied enhanced survivor benefits given to people who have been married for at least eight years. He and his late husband, Navy veteran Rhett Chalk, married in 2017, but have been a couple for a total of 44 years.

While Vilord’s lawyers said they were confident he would receive full benefits after last week’s policy change, they also said the VA’s announcement left some questions open and that the lack of retroactivity punished previously ineligible survivors.

“We are particularly concerned that LGBTQ+ survivors will enter into ‘marriage-like’ relationships if they were never allowed to marry in the first place,” said Peter Perkowski, attorney at Harvard Law School’s Veterans Legal. Clinic, which represents Vilord. press release last week. “The same is true if they were forced to keep their relationship a secret to avoid being involuntarily discharged from the military.”

— Rebecca Kheel can be reached at [email protected] Follow her on Twitter @reporterkheel.

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