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Frequently Asked Questions Benefits for LGBT Federal Employees and Annuitants

  • 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.

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  • 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).

     

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  • Yes. In 1997, President Clinton established the 24-hour LWOP policy to encourage Federal agencies to make 24 hours of unpaid leave available to Federal employees for these three family support purposes as an interim measure while pursuing legislation to amend the Family and Medical Leave Act (FMLA). Although FMLA was never amended for these purposes, President Obama continues to support this LWOP policy with a current emphasis to extend coverage to Federal employees with same-sex domestic partners. Pursuant to the President’s June 2, 2010, Memorandum, OPM has extended the 24-hour LWOP policy to apply also to the children and elderly relatives of employees’ same-sex domestic partners. See CPM 2010-16, Extension of 24-Hour LWOP Family Support Policy to Same-Sex Domestic Partners of Federal Employees, September 10, 2010 (http://www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalID=3146). See also Frequently Asked Questions about Leave: 24-Hours of LWOP for Family Support (http://www.opm.gov/oca/leave/html/24HoursLWOPQA.asp).

     

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  • Yes.  There is no limitation on the designation of individual beneficiaries under the FEGLI program.  Thus, a Federal employee may designate his or her same-sex domestic partner/spouse or a child of the domestic partner/spouse as the primary or secondary beneficiary on SF 2823, Designation of Beneficiary, Federal Employees’ Group Life Insurance (FEGLI) Program. 

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  • OPM has established websites containing helpful information about each program.  Here are the links:  

     

     

     

             ·     Federal Leave Policy:  http://www.opm.gov/oca/leave/  

     

     

     

    (Note that FSAFEDS is the Federal employee application of a law that applies to taxpayers, generally, and there is no separate statutory provision for Federal employees in particular.) 

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  • 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, annuitant, member of the uniformed services, or retired member of the uniformed services. The term “domestic partnership” is defined as a committed relationship between two adults, of the opposite sex or 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 a 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 a domestic partner of anyone else;

    (7) are not related in a way that would prohibit legal marriage in the U.S. jurisdiction in which the partnership was formed;

    (8) provide documentation demonstrating fulfillment of these requirements; and

    (9) certify that they understand that willful falsification of the 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 and may constitute a criminal violation under 18 U.S.C. § 1001.
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  • Same-sex couples who are in a civil union or other forms of domestic partnership other than marriage are ineligible for most benefits. There are two big exceptions. 

    The Federal Long-Term Care Insurance Program (FLTCIP) allows those individuals who satisfy the same-sex domestic partnership standard to be treated as qualifying relatives for Federal employees and annuitants. 

    Also, employees may elect at retirement an insurable interest annuity for anyone, including domestic partners or partners to a civil union, as long as they can show they are in good health and the people designated for this benefit can show that they have an insurable interest in the continued life of the employee. An insurable interest annuity is a different survivor benefit from a spousal survivor annuity benefit, so be aware that an insurable interest annuity provides a different level of benefits than a survivor annuity for a legal spouse. 

    Please note that information regarding eligibility for benefits can change, and you should consult the web pages of the individual benefits programs for the most current information. 

    In addition, please note that travel and relocation benefits available to same-sex domestic partners are outside of Title 5 and are administered by the General Services Administration, not the Office of Personnel Management.
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  • 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.

     

    With respect to certain benefits, however, documentation is required by regulation.  For example, 5 CFR § 875.213 states that, for the purpose of the Federal Long Term Care Insurance Program, and as prescribed by OPM, domestic partners “will be required to provide documentation to demonstrate that you meet these requirements.”
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  • If you are single when you retire under FERS and then marry after retirement, you may elect to provide a survivor annuity for your spouse.  You must tell OPM in writing within two years after your marriage that you want to elect a survivor annuity for your spouse.  Your annuity will be subject to two reductions beginning on the first day of the first month that begins after you have been married for nine months.  The first reduction is the reduction required to provide the survivor annuity, equal to 10 percent of your annuity if you elect to provide your spouse the maximum survivor annuity or equal to 5 percent of your annuity if you elect to provide your spouse the partial survivor annuity.  The second reduction is the reduction to cover the deposit that you are required to pay if you elect a survivor annuity for your spouse.  The deposit equals the difference between the amount of the annuity you received before the survivor election for your spouse is effective (retroactive to the commencing date of your annuity) and the amount of annuity that you would have received had your survivor election been in effect as of the commencing date of your annuity, plus interest.   The reduction for the deposit is a permanent reduction and is calculated to spread out the collection of the deposit over your lifetime.

    If you are married when you retire under FERS, and your marriage subsequently ends, you may elect to provide a survivor annuity for another spouse whom you marry after retirement.  You have two years after your marriage to notify OPM in writing that you want to elect a survivor annuity for the spouse you married after retirement.  Your annuity will be subject to the two reductions described in the paragraph above – one reduction to reflect the reduction for the survivor election and the other reduction to cover the deposit required to make the election – and the reductions will be effective the first day of the second month after OPM receives your election, but not less than 9-months after the date of your post-retirement marriage.

    You can find more information about benefits changes based on a marriage after retirement by going to the Life Events webpage on Marriage/Divorce. You can also contact OPM Retirement Services to talk about the specifics of your case.

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  • 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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