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On June 26, 2013, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. As a result of the Supreme Court's decision, the United States Office of Personnel Management (OPM) will now be able to extend certain benefits to Federal employees and annuitants who have legally married a spouse of the same sex, regardless of the employee's or annuitant’s state of residency. OPM is currently in the process of updating and revising the website to reflect this change, and will be updating this information as soon as possible. Please check back in the coming weeks for updates.
For purposes of ensuring consistent implementation of the President’s memorandum, a “domestic partner” is defined in OPM regulations (e.g. 5 C.F.R. § 875.213) as a person in a domestic partnership with an employee or annuitant of the same sex. The term “domestic partnership” is defined as a committed relationship between two adults, of the same sex, in which the partners—
(1) are each other’s sole domestic partner and intend to remain so indefinitely;
(2) maintain a common residence, and intend to continue to do so (or would maintain a common residence but for an assignment abroad or other employment-related, financial, or similar obstacle);
(3) are at least 18 years of age and mentally competent to consent to contract;
(4) share responsibility for a significant measure of each other’s financial obligations;
(5) are not married or joined in a civil union to anyone else;
(6) are not the domestic partner of anyone else;
(7) are not related in a way that, if they were of opposite sex, would prohibit legal marriage in the U.S. jurisdiction in which the partnership was formed;
(8) are willing to certify, if required by the agency, that they understand that willful falsification of any documentation required to establish that an individual is in a domestic partnership may lead to disciplinary action and the recovery of the cost of benefits received related to such falsification, as well as constitute a criminal violation under 18 U.S.C. § 1001, and that the method for securing such certification, if required, shall be determined by the agency; and
(9) are willing promptly to disclose, if required by the agency, any dissolution or material change in the status of the domestic partnership.
Generally, agencies may choose whether or not to require employees to provide documentation (such as a sworn affidavit) to establish the existence of a domestic partnership with respect to specific benefits. In determining whether to require documentation, however, agencies must consider whether a similar requirement is imposed upon opposite-sex spouses, consistent with the President’s intention that same-sex domestic partners be treated in the same manner as opposite-sex spouses for purposes of these benefits, to the extent permitted by law.
It depends. FSAFEDS follows IRS rules on dependents. If you can claim your same-sex domestic partner/spouse as a tax dependent, then you may be reimbursed under your FSAFEDS account for his or her eligible expenses.
The following set of FAQs was developed to answer questions about the benefits available to the same-sex domestic partners or spouses of Federal employees, under title 5, United States Code. Please note that information regarding eligibility for benefits can change quickly, and you should consult the web pages of the individual benefits programs for the most current information. In addition, please note that these FAQs do not address benefits available to same-sex domestic partners outside of Title 5, such as travel and relocation benefits, which are administered by the General Services Administration.
Yes. Lump-sum amounts payable on the death of a Federal employee or annuitant may be designated to go to any individual. If an employee or annuitant wishes to designate their same sex domestic partners to receive a lump sum, it is imperative that they do so affirmatively by making an election on an SF 2808.
Lump-sum benefits are paid in accordance with the statutory order of precedence under 5 U.S.C. § 8342(c) (CSRS) (http://www.gpo.gov/fdsys/pkg/USCODE-2010-title5/html/USCODE-2010-title5-partIII-subpartG-chap83-subchapIII-sec8342.htm) or 5 U.S.C. § 8424(d) (FERS) (http://www.gpo.gov/fdsys/pkg/USCODE-2010-title5/html/USCODE-2010-title5-partIII-subpartG-chap84-subchapII-sec8424.htm). Same-sex domestic partners are not among those listed in the statutory order of preference. Further, a same sex spouse cannot receive lump-sum benefits as a “widow” or “widower” under the statutory order of precedence (i.e., the second order of precedence under 5 U.S.C. §§ 8342(d) and 8424(d)) as a result of DOMA. Therefore, in order for same-sex domestic partners or spouses to receive lump-sum benefits, employees or annuitants must designate their same-sex domestic partners or spouses under the first order of precedence (through a designated beneficiary) using SF 2808, Designation of Beneficiary, Civil Service Retirement System (http://www.opm.gov/forms/pdf_fill/sf2808.pdf), and SF 3102, Designation of Beneficiary, Federal Employees Retirement System (http://www.opm.gov/Forms/pdf_fill/SF3102.pdf).
In addition to annual leave, same-sex domestic partners, the children of an employee’s same-sex domestic partner, and some other relatives of the employee’s same-sex domestic partner have been identified by OPM as “family members” for the purposes of sick leave (5 C.F.R. § 630.201), funeral leave (5 C.F.R. § 630.803), the Voluntary Leave Transfer (VLTP) Program (5 C.F.R. § 630.902), the Voluntary Leave Bank (VLBP) Program (5 C.F.R. § 630.1002), and the Emergency Leave Transfer (ELT) Program (5 C.F.R. § 630.1102). For information on the family members covered, please see OPM’s fact sheet Definitions Related to Family Member and Immediate Relative for Purposes of Sick Leave, Funeral Leave, Voluntary Leave Transfer, Voluntary Leave Bank, and Emergency Leave Transfer (http://www.opm.gov/oca/leave/HTML/FamilyDefs.asp).
More details may be found in the OPM fact sheets:
Sick Leave (General Information)(http://www.opm.gov/oca/leave/HTML/sicklv.asp),
Sick Leave for Family Care or Bereavement Purposes(http://www.opm.gov/oca/leave/HTML/sickfam.asp),
Sick Leave to Care for a Family Member with a Serious Health Condition (http://www.opm.gov/oca/leave/HTML/12week.asp),
Voluntary Leave Transfer Program(http://www.opm.gov/oca/leave/HTML/VLtP.asp),
Voluntary Leave Bank Program(http://www.opm.gov/oca/leave/HTML/VLBP.asp), and
Emergency Leave Transfer Program(http://www.opm.gov/oca/leave/HTML/ELTP.asp).
Because the individuals for whom an employee can provide care under the Family and Medical Leave Act (FMLA) are specified in statute, an employee may take FMLA leave only to care for spouses, sons and daughters under 18 or over 18 but incapable of self care because of a mental or physical disability, and parents. Employees may take FMLA leave for the care of sons and daughters of their same-sex domestic partner. See Compensation Policy Memorandum (CPM) 2010-15, Interpretation of “Son or Daughter” Under the Family and Medical Leave Act, August 31, 2010 (http://www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalID=3122).
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