Issue Briefs

Following is a portion of a recent CRS report summarizing benefits available to spouses of federal employees and retirees and the circumstances in which those benefits may also be available to same-sex domestic partners.

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Both federal employees and federal annuitants have access to certain benefits. Some of these benefits can be transferred to spouses or other designated persons. In some cases, a federal employee’s spouse may be explicitly authorized to receive a federal benefit. In other cases, a federal employee may designate a particular person to receive a federal benefit.

This section reviews benefits that cannot be extended to same-sex partners, others that are available to same-sex partners, and still others that have been made available to same-sex partners by the Obama Administration. These benefits have been mentioned in both current and previous legislation and executive-branch memoranda. Table 1 summarizes some of the benefits provided to federal employees and their spouses. It also provides information on whether these benefits are available to the same-sex partners of federal employees.

Table 1. Some Benefits Available to Federal Employees and Their Spouses (as Defined by DOMA) and the Availability of These Benefits to the Same-Sex Partners of Federal Employees

Federal Employee Benefit Availability

Health, Dental, and Vision Benefits A spouse of a federal employee may receive health, dental, and vision insurance benefits. A same-sex domestic partner is ineligible for these benefits.

 

Federal Employees Compensation Act (FECA) A spouse of a federal employee is eligible for survivor benefits if the employee is killed while performing his or her job. A same-sex domestic partner is not eligible to receive compensation under FECA.

Family and Medical Leave Act (FMLA) Eligible employees may use unpaid leave to care for an ailing spouse or for the ailing child of a spouse. An eligible employee may use unpaid leave to care for an ailing same-sex domestic partner. An eligible employee may use unpaid leave to care for the child of a same-sex domestic partner.

Other Types of Leave (such as sick leave, funeral leave) OPM regulations define "family member" for various types of leave. A spouse and a same-sex domestic partner are both included in the definition of "family member" for leave purposes.

 

Federal Employees’ Group Life Insurance (FEGLI) If a designated beneficiary is not named, a spouse automatically receives the life insurance benefit upon the death of a federal employee enrolled in FEGLI. A same-sex domestic partner would not automatically be the beneficiary. A federal employee may designate anyone, including a same-sex domestic partner, as the beneficiary of a life insurance benefit.

 

Civil Service Retirement System (CSRS) and Federal Employee Retirement System (FERS) Pensions and Survivors Benefits A spouse may be entitled to receive a survivor’s benefit under CSRS and FERS if the worker dies while employed in federal service or if the worker dies after retirement. The default benefit for a married federal worker who retires is a joint-and-survivor annuity. A same-sex domestic partner is ineligible to receive a survivor benefit and a federal worker with a same-sex domestic partner is not eligible to receive a joint-and-survivor annuity.

Insurable Interest Annuity A federal employee may designate anyone who is financially dependent on the employee as the beneficiary of an Insurable Interest Annuity. A same-sex domestic partner may be designated as the beneficiary of an Insurable Interest Annuity.

 

Thrift Savings Plan (TSP) A TSP participant may designate anyone, including a same-sex domestic partner, as the beneficiary of a TSP account. Upon death of the TSP participant, the TSP account is distributed based on order of precedence, if no beneficiary has been designated. In the order of precedence, "spouse" is listed first. "Same-sex domestic partner" is not listed in the order of precedence and would not be eligible to receive the proceeds of a TSP account if no beneficiary has been named.

 

Federal Long-Term Care Insurance Program (FLTCIP) Qualified relatives of federal employees are eligible to enroll in the FLTCIP. Same-sex domestic partners are included in the definition of qualified relatives.

 

Benefits Expressly Provided to Spouses

Health Benefits

The Federal Employees Health Benefits Program (FEHBP; 5 U.S.C. §8909; 5 C.F.R. §890) offers health benefits to qualifying federal employees and encompasses nearly 300 different health care plans. As with health care plans in the private sector, FEHBP provides benefits to enrollees for costs associated with a health checkup, an injury, or an illness. Health care costs are shared between the federal government and the enrollee. According to a 2010 study, the federal government pays, on average, 72% of a health plan’s premium and 28% of the premium’s cost is paid by the employee.

 

Pursuant to the Code of Federal Regulations, certain family members of a federal employee are eligible to enroll in FEHBP. Among those eligible are an employee’s spouse and children under age 22.

 

Neither same-sex domestic partners of federal employees nor the partners’ children are eligible to enroll in FEHBP. OPM’s website states the following:

 

Same sex partners are not eligible family members. The law defines family members as a spouse and an unmarried dependent child under age 22. Defense of Marriage Act, states, "the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife."

 

Dental and Vision Benefits

Federal employees may choose to enroll in the Federal Dental and Vision Program (FEDVIP; 5 U.S.C. Chapter 89A and 5 U.S.C. Chapter 89B), which provides vision and dental benefits in addition to the limited coverage provided by FEHBP. Unlike FEHBP, however, the enrollee pays all benefit premium costs—the federal government does not contribute to the benefit’s premiums.

Like federal health benefits, federal employees may extend FEDVIP benefits to family members. Eligibility rules are identical to FEHBP’s regulations.

 

Both the Enhanced Dental Benefits program (5 U.S.C. §8951) and the Enhanced Vision Benefits program (5 U.S.C. §8981) are not extended to the same-sex partners of federal employees who are eligible for the benefit. OPM states on its website that "[t]he rules for family members’ eligibility are the same as they are for the" FEHBP for both the dental and the vision programs.

Federal Employment Compensation Act Benefits

A federal employee is eligible for up to $100,000 in compensation if he or she is disabled while performing his or her job, pursuant to the Federal Employment Compensation Act (FECA; 5 U.S.C. Chapter §§8101-8193). If an employee is killed while performing his or her job, 5 U.S.C. §8102a requires that payment go to the deceased employee’s spouse or children. The federal employee may also designate his or her parents or siblings as the compensation recipient. The same-sex partner of a federal employee is not listed in statute among the eligible recipients of such compensation.

 

Federal Benefits Provided to Spouses and Others

As noted earlier, for certain benefits, the term spouse is either not found in the benefit’s authorizing language or the authorizing language widens the scope of eligibility. This section describes federal benefits that are either explicitly extended to same-sex partners of federal employees or those that allow federal employees to designate same-sex partners as beneficiaries.

Family and Medical Leave Act

 

Pursuant to the Family and Medical Leave Act (FMLA; 5 U.S.C. Chapter 63), federal employees are entitled to use up to 12 weeks of unpaid leave during any 12-month period for any of the following reasons:

* the birth of a child of the employee and follow-up care related to that birth;

* the adoption of a child by the employee or placement of a foster child with the employee;

* the care of an employee’s ailing spouse, child, or parent;

* an illness or condition of the employee that renders him or her unable to work; or

* the spouse, child, or parent of the employee is on covered active duty or has been notified of an impending call or order to covered active duty in the Armed Forces.

 

The 12 weeks of unpaid leave may be used intermittently throughout the year, when the employee meets statutory and regulatory requirements of FMLA.

 

FMLA regulations (5 C.F.R. §630.1201) define spouse explicitly as "an individual who is a husband or wife pursuant to a marriage that is a legal union between one man and one woman, including common law marriage between one man and one woman in States where it is recognized." A federal employee, therefore, may not use leave acquired pursuant to FMLA to care for an ailing same-sex domestic partner.

A June 22, 2010, Department of Labor (DOL) Administrator Interpretation of FMLA interpreted the act’s definition of "son or daughter" to permit an employee in a same-sex partnership to use FMLA-approved leave to care for the child of his or her same-sex partner. Prior to the Administrator Interpretation, a federal employee was not permitted to use leave acquired pursuant to FMLA to care for the ailing child of a same-sex domestic partner, unless the employee had legally adopted the child. The DOL interpretation applies to all employees in both the public and private sectors.

 

Other Types of Leave

On June 14, 2010, OPM released a final rule clarifying the definitions of family member and immediate relative as they are used in determining eligibility for certain kinds of leave—including sick leave, funeral leave, voluntary leave transfer, voluntary leave bank, and emergency leave transfer. The regulation formerly had defined "family member" as any one of the following:

* spouse, and parents thereof;

* children, including adopted children and spouses thereof;

* parents;

* brothers and sisters; and

* any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

Pursuant to the new regulation, the definition of family member now also includes

* grandparents and grandchildren, and spouses thereof; and

* a domestic partner and parents thereof, including the domestic partner of any of the relatives listed above.

 

The new regulation also modified existing or added new definitions to criteria that determine if same-sex partners would be eligible for certain leave benefits. For example, the terms committed relationship, domestic partner, parent, and son or daughter were added into the Code of Federal Regulations. The modified regulation applies to leave benefits for both same-sex and opposite-sex partnerships, and includes but is not limited to partnerships recognized by a state, territory, or district government. The regulation became effective June 14, 2010. The regulation does not appear to affect FMLA.

 

Life Insurance

In some cases, a federal employee may not choose to enroll a spouse or same-sex partner in a federal benefit program. Instead, the employee may designate any individual as the recipient of a federal benefit. Pursuant to 5 U.S.C. Chapter 87, most federal employees, including part-time employees, are automatically enrolled in the Federal Employees’ Group Life Insurance (FEGLI) program, which is administered by Metropolitan Life Insurance Company. Federal employees pay two-thirds of their life-insurance premium, and the federal government pays the remaining third. A federal employee may designate anyone, including a same-sex partner, as their life insurance beneficiary by filing an SF 2823 form. A federal employee’s spouse would automatically receive the federal benefit if he or she did not specifically designate a different beneficiary, pursuant to federal law (5 U.S.C. §8705(a)).

 

In 5 U.S.C. §8701, the section of U.S. Code that defines the terms used on statutes that govern federal life insurance, family member includes the phrase spouse of the individual when listing eligible beneficiaries. Title 5 U.S.C. §8705, the section of code that delineates the order of preference in which life insurance benefits would be distributed in the event of a federal employee’s death, says life insurance benefits would first be distributed to any person or entity that was selected by the employee using the SF 2823 form. If no form was completed, the benefit would then go to "the widow or widower of the employee." It would appear, therefore, that DOMA would preclude same-sex domestic partners from qualifying as a widow or widower.

 

Federal Employee Pensions and Survivor Benefits

Federal employees with permanent appointments are eligible for retirement and disability benefits under either CSRS or FERS. Employees hired before January 1, 1984, are covered by CSRS unless they chose to switch to FERS during open seasons held in 1987 and 1998. Most federal employees initially hired into permanent federal employment on or after January 1, 1984, are covered by FERS. CSRS and FERS provide (1) a defined benefit pension plan, which pays a monthly dollar amount for the lifetime of the retiree; and (2) access to the Thrift Savings Plan (TSP), which is a defined contribution retirement savings plan in which employee and (for employees covered by FERS) agency contributions accrue tax-deferred investment earnings in a retirement savings account.

 

Benefits Under CSRS/FERS Defined Benefit Pension Plan

Workers covered by the CSRS or FERS defined benefit pension plan receive a monthly retirement annuity for the lifetime of the retiree if the retiree meets all eligibility requirements. The payment in retirement is determined by a formula that uses the worker’s number of years in federal service, an accrual percentage, and salary base. The accrual rate is higher for employees under CSRS than under FERS. Workers covered by CSRS do not participate in Social Security, do not receive Social Security benefits, and do not pay Social Security taxes. Workers covered by FERS fully participate in Social Security.

 

Under CSRS and FERS, an eligible spouse is entitled to receive monthly retirement benefits if (1) the covered worker dies while employed in federal service; or (2) the covered worker dies after retirement. When a federal employee dies, the surviving spouse of the deceased federal employee may be entitled to a survivor’s benefit. When a married federal worker retires, the married couple receives a monthly retirement benefit for the longer of the lifetime of the worker or the spouse. The monthly benefit in retirement is reduced to account for the expected longer time period in which the benefit will be paid. The spousal benefit is the default option for married federal employees, unless both the federal worker and spouse provide written consent to waive the benefit.

 

Title 5 of the U.S. Code, which governs benefits under CSRS and FERS, defines the term spouse without reference to the individual’s gender. Title 5 does not define the word marriage; however, the Code of Federal Regulations defines marriage for purposes of determining eligibility for federal retirement benefits under Title 5 as "a marriage recognized in law or equity under the whole law of the jurisdiction with the most significant interest in the marital status of the employee, member, or retiree unless the law of that jurisdiction is contrary to the public policy of the United States." Since DOMA defines a spouse as "a person of the opposite sex who is a husband or a wife," same-sex partners are ineligible to receive spousal benefits entitled to opposite-sex partners.

 

If a federal employee dies, and no survivor annuity is payable to a spouse, former spouse, or a child, then the employee’s contributions to CSRS and FERS may be returned as a lump-sum benefit. Under both FERS and CSRS, an employee may designate anyone, including a same-sex partner, as his or her beneficiary for a lump-sum refund of retirement contributions to the retirement system. If anyone qualifies to receive survivor annuity benefits by law (such as a spouse or dependent child), however, retirement contributions cannot be refunded. If no survivor benefit is payable and the employee has not designated a beneficiary, then the return of contributions will be distributed based on the order of precedence. The order of precedence awards the benefits in the following order: widow or widower; child or children equally, and to the descendants of deceased children; parents equally or surviving parent; appointed executor or administrator of estate; or next of kin who is entitled to your estate under the laws of the state in which the employee resided at the time of death.

Insurable Interest Annuity

 

Although a federal employee cannot name a domestic partner as his or her surviving beneficiary under either FERS or CSRS, an employee who is applying for a non-disability retirement can elect an Insurable Interest Annuity (IIA), which is a survivor annuity to an individual who is financially dependent on the employee. Only one person may be named as the beneficiary of the IIA, and the election must be made at the time of retirement. The employee must establish, through one or more affidavits from other people, the reasons why the beneficiary might reasonably expect to suffer loss of financial support as a result of the employee’s death. The cost of an IIA can range from a 10% reduction in the employee’s retirement annuity if the beneficiary is 10 years younger than the employee to a 40% reduction if the beneficiary is 30 or more years younger.

TSP Defined Contribution Pension Plan

 

Both CSRS- and FERS-covered workers may contribute up to $17,000 in 2012 ($22,500 for those age 50 and older) to the Thrift Savings Plan (TSP). Contributions to TSP are excluded from taxable income; taxes are paid when funds are withdrawn in retirement. Employees covered by FERS receive an agency matching contribution of up to 5% to their TSP account. Workers covered by CSRS do not receive agency matching contributions.

A federal employee can name anyone, including a domestic partner, as the beneficiary under the TSP. The beneficiary will receive the amount in the TSP account following a participant’s death. For spouses who are beneficiaries of a deceased TSP participant and the account is $200 or more, TSP establishes a beneficiary participant account. The beneficiary account is automatically invested in the Government Securities Investment (G) Fund until the spouse beneficiary elects different investment options. The spouse may keep the funds in the TSP beneficiary account or elect to withdraw or transfer the funds to an Individual Retirement Account (IRA) or other retirement plan, if the plan allows. Non-spouse beneficiaries cannot retain a TSP account. The funds in a deceased participant’s account are either transferred directly to the non-spouse beneficiary or to an inherited IRA.

 

Death Benefits If No Beneficiary Is Named

If an employee does not designate one or more beneficiaries under FERS, CSRS, or the TSP, the funds will be distributed based on the order of precedence. The order of precedence awards the benefits in the following order: widow or widower; child or children equally, and to the descendants of deceased children; parents equally or surviving parent; appointed executor or administrator of estate; or next of kin who is entitled to the estate under the laws of the state in which the employee resided at the time of death. Thus, the funds from the TSP or CSRS/FERS lump-sum benefit will bypass a same-sex partner unless the federal employee actively designates that person as the beneficiary.

 

Federal Long Term Care

Federal employees may apply for the Federal Long Term Care Insurance Program (FLTCIP; 5 U.S.C. §9001), which provides medical services for enrollees who suffer a chronic medical condition and are unable to care for themselves. Employees may voluntarily opt into FLTCIP, and the entire premium is covered by the enrollee. Pursuant to 5 U.S.C. §9001, qualifying federal employees; members of the uniformed services; federal annuitants; current spouses of federal employees, servicemembers, or annuitants; adult children of federal employees, servicemembers, or annuitants; and parents, parents-in-law, and stepparents of federal employees, servicemembers, or annuitants are eligible to enroll in FLTCIP. In addition, federal law states that OPM may prescribe regulations that permit an "individual having such other relationship" to a federal employee, servicemember, or annuitant to enroll in FLTCIP.

 

On June 1, 2010, OPM published in the Federal Register a final rule that expanded the definition of qualified relative to include "the same-sex domestic partners of eligible Federal and U.S. Postal Service employees and annuitants." As of July 1, 2010, same-sex partners of federal employees are eligible for FLTCIP benefits.

 

Several comments received by OPM during the regulatory review of the definition change of qualified relative requested that opposite-sex domestic partners—in addition to same-sex partners—be made eligible for the long term care benefit. In the final rule, however, OPM wrote that "opposite-sex domestic partners were not included because they may obtain eligibility to apply for Federal long term care insurance through marriage, an option not currently available to same-sex domestic partners.”