More Same-Sex Couples Eligible for Survivor Benefits After VA Policy Change

Same-sex spouses who were in long-term relationships with a veteran but were not legally able to marry before 2015 may now qualify for survivor benefits under a policy change announced by the Department of Veterans Affairs.

The change applies to survivors who -- because of bans before a Supreme Court ruling that year making gay marriage a constitutional right -- weren't wed long enough before their spouse died to qualify for 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 marriages," VA Secretary Denis McDonough said in a statement Oct. 13. "It is VA's mission to serve all veterans -- including LGTBQ+ veterans -- as well as they've served our country, and this decision is a key part of that effort."

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By law, couples have to be married at least a year for the surviving spouse to be eligible for benefits such as the VA survivors pension or the Dependency and Indemnity Compensation. The rates increase if a couple is married at least eight years.

But prior to the Supreme Court's 2015 decision in Obergefell v. Hodges, same-sex couples in more than a dozen states were barred from marrying, and many of the states that did permit gay marriage before that had legalized it only a couple of years beforehand.

Under the VA's new policy, survivors who got married after the Obergefell decision in June 2015 and can establish 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-type relationship include a commitment ceremony, joint banking account or joint purchase of a house, the VA said in a news release.

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

The announcement is the latest move from the Biden administration aimed at making up for past anti-LGBTQ policies and laws. Last year, the VA said veterans given other-than-honorable discharges solely for their sexual orientation under the military's now-defunct "Don't Ask, Don't Tell" policy would be eligible to receive full 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 weren't able to marry prior to Obergefell.

"It's unacceptable to me that surviving partners of veterans have been denied the VA care, benefits, and services they deserve because they did not have the right to marry," Sen. Patty Murray, D-Wash., who organized the July letter, said in a statement last week. "I've been fighting for years to tear down barriers like these for our veterans, and I'm glad VA took this important step -- but our work is not done."

The VA has also faced at least one court challenge over survivor benefits for LGBTQ spouses. Last year, Larry Vilord appealed to the U.S. Court of Appeals for Veterans Claims when he was denied the enhanced survivor benefits given to those married at least eight years. He and his late husband, Navy veteran Rhett Chalk, wed in 2017, but were in a relationship for a total of 44 years.

While Vilord's lawyers expressed confidence he would be granted full benefits after last week's policy change, they also said the VA's announcement left open some questions and that the lack of retroactivity punishes previously ineligible survivors.

"We are particularly concerned about LGBTQ+ survivors establishing 'marriage-like' relationships if they were never allowed to marry in the first place," Peter Perkowski, a staff attorney at Harvard Law School's Veterans Legal Clinic, which is representing Vilord, said in a news release last week. "The same is true if they were forced to keep their relationship hidden to avoid being involuntarily discharged from the military."

-- Rebecca Kheel can be reached at rebecca.kheel@military.com. Follow her on Twitter @reporterkheel.

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