Domestic Partners and Federal Benefits

Domestic partners are eligible for certain benefits through a series of administrative actions. A June 17, 2009 Presidential memo allowed same-sex domestic partners of federal employees and retirees to apply under the Federal Long Term Care Insurance program, effective in July 2010. In November 2015 eligibility was extended to opposite sex partners as well under 5 CFR 875.

The 2009 memo also made both same sex and opposite sex domestic partners eligible as family members for employees to use sick leave for family care or bereavement purposes, as well as to use shared leave for family situations. Implementing rules are at 5 CFR 630.

A Presidential memo of June 2, 2010 further required that certain employee assistance program and similar benefits be expanded to same-sex domestic partners to the extent allowed by law.

For purposes of these policies a domestic partnership is defined as a committed relationship between two adults, of the same sex, in which the partners:

  • are each other’s sole domestic partner and intend to remain so indefinitely;
  • 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);
  • are at least 18 years of age and mentally competent to consent to contract;
  • share responsibility for a significant measure of each other’s financial obligations (including situations where one is the sole source of income);
  • are not married or joined in a civil union to anyone else;
  • are not the domestic partner of anyone else;
  • at the time the partnership is formed, are not related in a way that, if they were of opposite sex, would prohibit legal marriage in the U.S. jurisdiction in which they reside;
  • 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
  • are willing promptly to disclose, if required by the agency, any dissolution or material change in the status of the domestic partnership.

Agencies may choose to secure documentation (such as a sworn affidavit) to establish the existence of a domestic partnership but they are not required to do so. In determining whether to require documentation, agencies must consider whether a similar requirement is imposed upon opposite-sex spouses.

The 2013 U.S. Supreme Court decision invalidating the Defense of Marriage Act extended eligibility under the retirement, insurance and flexible spending account programs to same-sex spouses and to children of those couples as applicable. However, that applied only to same-sex marriages, not to domestic partnerships or other forms of civil unions (either opposite-sex or same-sex) not formally recognized as a marriage.

Due to that decision, starting in 2014, children of same-sex domestic partners, although not the partners themselves, were eligible under the health insurance and vision-dental insurance programs if the enrollee was living in a state that did not recognize same-sex marriage and submitted a statement affirming that he or she would marry the partner if they lived in a state that did recognize such marriages. That policy was revoked (with a temporary exception, now expired, for those living overseas) following a 2015 Supreme Court decision requiring all states to perform and recognize same-sex marriages.

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