Family Law

However, as states across the country begin to affirm the rights of same-sex couples and their children - including access to the institutions of marriage, divorce, spousal benefits, and child support and custody - the justifications and practical workability of the Defense of Marriage Act is being directly challenged. A recent legal opinion issued by the US Department of Justice instructed the federal government that it may extend Social Security Administration benefits to the non-biological child of a parent in a recognized same-sex relationship.

In this ruling, the Department of Justice (DOJ) considered the case of Monique and Karen, who had obtained a civil union in Vermont in 2002. In 2003, Monique gave birth to a little boy named Elijah. Karen did not formally adopt Elijah, because he automatically became her son and a child of the couple under Vermont's Civil Union law. That same year Karen began receiving social security disability benefits.

Children of adults receiving SSA benefits have traditionally been entitled to benefits in their own right, but the SSA was unclear how to apply the prohibitions of DOMA to Elijah, who under federal law was not legally related to Karen except by way of Karen's civil union with Monique.

The Elijah decision is consistent with previous regulations which prescribe that a "natural child" shall be defined based on "the law on inheritance rights that the State courts would use to decide whether [the individual] could inherit a child's share of the insured's personal property if the insured were to die without a will". 20 CFR §404.355(b)(1)(2007). In other words, if an individual would be considered the child of a benefits recipient under his own state's inheritance laws, the individual would be considered an eligible child for federal social security benefits purposes.

Under this ruling, Elijah would be considered Karen's son for the purposes of federal SSA benefits eligibility even though he was only related to Karen through Vermont's Intestate Succession and Civil Union statutes. The ruling is significant because of the DOJ's pronouncement that benefits will not be denied under DOMA simply because the parental relationship is derived exclusively from a state-sanctioned same-sex marriage or union.

It is important to note that the Elijah decision will not provide benefits for non-biological children of same-sex parents in states that refuse to recognize the marriage or civil union of the parents. For example, even Elijah's benefits would terminate if Karen and Monique were to move their family to a state that did not recognized their union. Same-sex parents of children can avoid this result by speaking with an attorney and making sure that both spouses have legally adopted their children.

The full text of the opinion can be found on-line at http://www.usdoj.gov/olc/2007/saadomaopinion10-16-07final.pdf.