Are you married?
The woman on the phone was very helpful. Walking me through the various sections of the form, telling me what I would and would not need to fill out, and what information I’d need to provide. We were going along fine, until we got to the part where I had to either fill out the “Unmarried Determination” form or had the “Spouse’s Waiver” over to my legally sanctioned spouse. That’s because a legal spouse has the right to receive a survivor benefit if I die first, of at least 50% of the accumulation in the account.
A legal spouse, that is. As this handy factsheet from Gay & Lesbian Advocates & Defenders points out, it’s different for gay couples.
A gay or lesbian employee does not have the option available under many private pension plans (especially defined benefit plans) to select a “joint and survivor annuity,” which means that in exchange for taking a smaller amount during his or her life, the surviving partner would be able to still collect on the pension even after the worker has died. This is a matter of federal law.
… A same-sex partner does not have the ability to waive his or her partner’s receipt of a pension in a form other than a qualified joint and survivor annuity. For spouses, this is required under the Federal Employee Retirement Income Security Act (ERISA), which trumps all state laws in this regard. 24
An unmarried partner cannot “roll-over” his or her deceased partner’s retirement plan assets into an IRA in the surviving partner’s own name. This means that rather than being able to let the money continue growing tax free, the survivor, as the beneficiary, must begin to take distributions immediately (he or she can do so over a period of time based on his or her life expectancy). If the surviving partner is under age 59½, there is an early withdrawal penalty of 10% on the value of the IRA or 401(k).
A surviving same-sex partner who is the beneficiary of the deceased partner’s retirement plan cannot receive those tax-free. Instead, he or she is responsible for federal income taxes immediately on any distributions and there is no period in which those 401(k) assets can continue to grow tax-free. Massachusetts also taxes any gains from the IRA (the amount of the contribution itself is exempt from Massachusetts income tax).
These are all things that heterosexual couples can pretty much take for granted, because they’re rewarded for their commitments to each other, rather than penalized. What options are available to same-sex couples come at a price. If you’re gay, you’ll pay more, get less, and subsidize benefits for other families that are denied to you and yours.
Like I said before, these are issues that touch the lives of gay and lesbian Americans who are not millionaires, but who get up every day and go to work, come home and take care of their families, and hope that if the worst should happen their families will be protected. But they won’t be. Right now, they can’t be. It’s not “about the money.” It’s about security for our families — the kind of security provided by a society that recognizes keeping families stable benefits everyone. The kind of society, that is, that counts our families as families; the kind we don’t have yet.
So, when the woman on the other end of the phone asked “The Question” I couldn’t suppress a sigh, and she probably couldn’t help hearing it. How to answer? I finally managed to say “I am not legally married.”
“I understand,” she replied.
“I’m married,” I added, “in ever sense but the legal one.” Maybe I wanted to make it clear what my situation was.
“Well, you should be,” she said. “I honestly hope you can be someday.”
I thanked her, both for her help and for her support.
Then I checked the box next to the sentence reading “I am not married.”
I guess I could use the practice. After all, tax time is coming soon. And, anyway, I’ll have to answer the question a thousand more times in my life. Because it is my life, and that question touches nearly every aspect of my life.