Wednesday, April 2, 2014

FECA Benefits for Legally Married Same Sex Couples

On June 26, 2013, in United States v. Windsor, the U.S. Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. Section 3 of DOMA limited the definition of spouse to a person of the opposite sex who is a husband or wife, and as a result, augmented FECA compensation was not available based on a claimant's same sex spouse. The Office of Workers' Compensation Programs (OWCP) has begun to implement the ruling of the Supreme Court.

Benefits under the Federal Employees' Compensation Act (FECA) impacted by Windsor include augmentation of compensation (5 U.S.C. § 8110), survivor benefits (5 U.S.C. § 8133), beneficiaries of schedule awards unpaid at death (5 U.S.C. § 8109), and payment of the FECA death gratuity to a spouse (5 U.S.C. § 8102a).

The FECA program's long held position as set forth in FECA Program Memorandum No. 156 (issued May 30, 1972) explicitly provides: "The validity of a marriage is determined by the law of the jurisdiction where the marriage took place."[Emphasis added.] Therefore, an employee or claimant legally married to a same sex spouse is entitled to any and all FECA benefits that would be extended based on a valid marriage regardless of their place of residence or domicile. The same principles apply to surviving spouses and stepchildren of same sex marriage.

There are numerous places in the FECA, its implementing regulations and procedures that include gender-neutral terms that refer to marital status, such as "spouse," "surviving spouse," "marriage," and "married." These terms will be read to include an individual married to a person of the same sex if the couple is lawfully married under the law of the jurisdiction where the marriage took place. The term "marriage" will be read to include a marriage between individuals of the same sex.

FECA also uses the terms "widow" and "widower," which are defined in a gender-specific manner. FECA provides that: "'widow' means the wife living with or dependent for support on the decedent at the time of his death, or living apart for reasonable cause or because of his desertion," 5 U.S.C. § 8101(6), and "'widower' means the husband living with or dependent for support on the decedent at the time of her death, or living apart for reasonable cause or because of her desertion," 5 U.S.C. § 8101(11). "Husband" and "wife" are also used in the statute, but are not defined. See 5 U.S.C. §§ 8101, 8110, 8133. In light of Windsor, the terms "widow," "widower," "husband," and "wife" as used in FECA will also be interpreted to include same-sex spouses.

For the most part, the Division of Federal Employees' Compensation's (DFEC's) existing practices and processes will simply apply to the granting of benefits based on a valid same sex marriage.

OWCP has determined that claimants who are in a same sex marriage should not be required to provide a higher level of detailed documentation than claimants who are in an opposite sex marriage.

The Office of Personnel Management (OPM) has announced that it will extend health and other benefits to Federal employees and annuitants who have legally married a spouse of the same sex.

Granting of Augmented Compensation:

FECA provides a basic rate of compensation for disability equal to 66 2/3 percent of the injured employee's pay. 5 U.S.C. §§ 8105, 8106. Where the employee has one or more dependents as defined by the FECA, the employee is entitled to have basic compensation augmented at the rate of 8 1/3 percent, for a total of 75 percent of pay. 5 U.S.C § 8110 (b).

1. If a claimant applies for augmented compensation based on a same sex marriage, that claimant will be expected to supply proof of a valid marriage in the form of a marriage certificate to the same extent and in the same manner that any claimant would be expected to supply marriage proof. This proof will generally consist of a marriage certificate issued by a jurisdiction/state that recognizes same sex marriage.

2. A claimant seeking augmented compensation who has previously been married must produce proof of divorce.

3. Where a claimant previously precluded from seeking benefits based on Section 3 of DOMA establishes a same sex marriage, augmented compensation (if not previously granted due to the existence of another eligible dependent such as a child) will be granted retroactively back to the date of the valid same sex marriage or the triggering event for payment, whichever is later.

4. Consistent with DFEC historic practice, in cases where a CA-7 claim is received from the employing agency, the employing agency may assist in verifying marital status in the initial stages of the claim.

Survivor benefits:

FECA provides survivor benefits to surviving spouses in accordance with a statutory formula set forth in 5 U.S.C. § 8133. The statutory percentage paid to a spouse differs based on whether there are dependent children.

1. Because Section 3 of DOMA has been declared unconstitutional, it is possible there are surviving same sex spouses whose entitlement post Windsor will reduce the payments made to surviving qualifying children. Any payment to a surviving same sex spouse who has established a valid marriage will be issued retroactive to the date of the employee's death.

2. Because the payments to the dependent children were legally correct at the time of payment, all adjustments to benefits due to the children will be prospective and no overpayments will be declared.

3. Under the definition of child under FECA (5 U.S.C. § 8101 (9)), the stepchildren of same-sex married couples also qualify for survivor benefits.

Note: Because of the many ways that a death claim may be found timely (including a prior disability claim, or notice to the agency) under 5 U.S.C. § 8122, claims examiners have been reminded that survivor claims impacted by Windsor should not reflexively be denied on the basis of time limitations and that the National Office should be consulted prior to denial of any survivor claim that involves a same-sex marriage.

Beneficiaries of schedule awards unpaid at death:

Section 8109 of the FECA provides for the order or precedence of beneficiaries of schedule awards unpaid at the time of a claimant's death where an employee has filed a valid claim for a schedule award during his or her lifetime and where the employee dies from a cause other than the injury.

1. The order of precedence provided by 5 U.S.C. § 8109(a)(3)(D) is to the surviving spouse if there is no child; if there is both a surviving spouse and a child or children, one half to the spouse and the remaining half to the child or children. If there is no surviving spouse, payment is to the child or children. (Section 8109 then provides for payment to dependent parents and relatives thereafter if there is no surviving spouse and no surviving child.)

2. As with the survivor benefits discussed above, a surviving same sex spouse who has established a valid marriage will be issued his or her appropriate share, while any required adjustments to the payments to children will be prospective only and no overpayments will be declared.

3. As with survivor benefits discussed above, under the definition of child under FECA (5 U.S.C. § 8101 (9)), the stepchildren of a same sex married couple also qualify for survivor benefits.

D. FECA Death Gratuity:

Section 8102a of the FECA provides for a death gratuity of $100,000 for the survivors of an employee who dies of injuries incurred in connection with the employee's service with an Armed Force in a contingency operation. Unless the order of precedence is varied by the designation of an alternate beneficiary, the gratuity is paid in full to a surviving spouse, if one exists. In cases where a claimant was previously precluded from seeking benefits based on Section 3 of DOMA, that payment may be made to a surviving same sex spouse where that spouse is able to establish a valid marriage.

Under 5 U.S.C. § 8102a(d)(6), if an employee has a spouse but designates a person other than that spouse to receive all or a portion of the FECA death gratuity, the employing agency is required to provide notice of the designation to the spouse. Accordingly, the agency will need to notify any same sex spouse if such a designation is made.

Administering Health (FEHB) and other Federal Benefits:

Under the OPM guidance noted above, same sex spouses and children of same sex marriage are entitled to the same benefits as opposite sex spouses and children of opposite sex marriages.

Note: FECA authorizes certain payments conditioned upon the existence of a marriage. Prior to the Supreme Court's Windsor decision, OWCP was not able to recognize the legal marriages of same-sex couples. With the striking down of Section 3 of DOMA, OWCP can now treat same-sex marriages, same-sex spouses, and children of same-sex marriages as eligible for certain FECA payments. However, because FECA conditions these payments on the existence of a marriage, individuals in other kinds of relationships, such as civil unions and domestic partnerships (whether same-sex or opposite-sex), are still not eligible for FECA payments. FECA benefits also continue to be unavailable to all ex-spouses, whether same-sex or opposite-sex. See William S. Capeller, M.D., 28 ECAB 262, 264 (1977) (An ex-wife does not come within the definition of wife under FECA.)

United States vs. Windsor:  http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf

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