On June 17, 2014, the Department of Veterans Affairs [hereinafter “VA”] released VAOPGCPREC 4-2014, an opinion clarifying the application of 38 U.S.C. § 103(c). Section 103(c) deals with the definition of “spouse” for VA purposes. In short, if a marriage is “valid under the law of place where they resided at the time of inception of their marriage, it is valid for VA purposes.” Under VAOPGCPREC 4-2014, the marriage would still be valid for VA purposes even if the place of current residence does not legally recognize the marriage. However, “[a] domestic partnership or civil union that is not recognized as a ‘marriage’ under state law cannot be considered a valid marriage for VA purposes.” In contrast, the Social Security Administration recently announced that they will now recognize non-marital same-sex relationships in some circumstances. More information can be found at SSA POMS GN 00210.004 and http://www.ssa.gov/people/same-sexcouples/.
I believe there are seventeen states that now recognize same-sex marriage, nine states that recognize legal non-marital status for same-sex couples (i.e. domestic partnership or civil union) and twenty-six states that confer no legal status for same-sex relationships. I appreciate that this is a highly polarizing issue; however, there is a practical consideration that would mandate consistent statutory and regulatory schemes regardless of the type of Federal benefit the individual is applying for.