Today’s Supreme Court ruling on DOMA means that same-sex couples now have nearly all the rights and burdens of straight couples in the eyes of the law both when they get married and when they get divorced. One of those burdens is that it just got a lot harder to hide assets within a same-sex marriage.
Even though same-sex couples already had an obligation to disclose their assets to their spouse during a divorce, prior to the DOMA decision, it was far easier for same-sex partners to hide substantial assets from their partners.
Pension income is often one of the largest financial resources in a marriage and, until now, married same-sex partners could easily keep it hidden from one another. Federal law requires most married people, not just government employees, to obtain spousal consent if they wish to designate anyone other than their spouse as the recipient of the survivorship benefits of their pension.
Federal law also requires spousal notification before a married pension recipient can forego survivorship rights.
Married people wishing to keep assets from their spouse have a strong incentive to hide pensions. A single life pension without survivorship benefits gives the pensioner a much higher monthly payout than a joint pension with survivor benefits.
Similarly, married military personnel cannot opt out of the Survivor Benefit Plan, which requires them to pay monthly premiums, unless his or her spouse has waived participation in the plan in writing. Opting out of the military Survivor Benefit Plan means a higher monthly paycheck for service members.
DOMA defined the term “spouse” in all federal laws as “a person of the opposite sex who is a husband or a wife.” People married to individuals of the same gender were not considered to be “spouses” under federal law, so they were not required to notify one another of their choices about pensions or military death benefits. They also had no right to review their spouse’s beneficiary designation. This means that a pension recipient in a same-sex marriage could easily hide benefits or take in substantially higher military pay, all while keeping his or her partner in the dark.
That is no longer so, now that DOMA’s definition of “spouse” has been struck down. Just like all other married couples, same-sex spouses will need to sign on the dotted line before their partners can fritter away their nest egg.
Today’s decision also points out that DOMA exempted the spouses of some government employees from publicly disclosing certain assets. For example, as the decision mentions, federal law requires executive branch officials to recuse themselves from working on matters in which their spouse has a financial interest. Additionally, spouses of senators and senate employees cannot accept certain high value gifts and spouses of high-ranking government officials must make certain financial disclosures.
Until today, all of the spouse’s financial information and ties to particular donors or industries could remain safely shielded not only from public view, but also from their spouses. Now, previously private information about these assets will be available to any spouse or investigator who is savvy enough to find it.