Same-Sex Marriage and Benefit Plans

Further impetus for employers to address conflicting federal and state benefits-law regimes

By Todd A. Solomon, Joseph S. Adams, Brett R. Johnson, Megan Mardy of McDermott Will & Emery LLP Jun 3, 2008
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The legalization of same-sex marriage in some U.S. states and in Canada has significant consequences for employers throughout the United States, since some of their employees travel to these destinations to wed a same-sex partner.

Rights in Flux

Same-sex marriages present benefits-related difficulties for employers because federal and state governments have given mixed messages regarding the status of same-sex couples throughout the United States. Consider the following:

·A growing number of states now allow same-sex marriage. Other states allow same-sex couples to enter into civil unions, and still others allow same-sex couples to register as domestic partners.

·However, the federal Defense of Marriage Act (DOMA) allows states to refuse to recognize other states’ same-sex marriages. In addition to the federal DOMA, many states have laws or constitutional provisions (often called mini-DOMAs) prohibiting the performance of same-sex marriage in their states and the recognition of same-sex marriages performed in other states.

·Some state courts have found their state laws defining marriage as the union of one man and one woman unconstitutional. Similarly, many states have offered domestic partner benefits to their own government employees. At the same time, other states have passed state constitutional amendments defining marriage as between one man and one woman and, in some instances, even banning certain employers from offering benefits to employees’ domestic partners.

·More confusingly, some states have inconsistent rulings. For example, although same-sex couples may not marry legally in New York, the state recognizes same-sex marriages that were performed elsewhere.

What Employers Can Do: Three Questions to Ask

Given the current legal flux, some employers question whether they should establish same-sex marriage policies at all. However, individuals are marrying same-sex partners right now (with many more likely to be doing so after June 17, 2008,) and will make demands (or already have made demands) for employee benefits for their same-sex spouses. Employers that are not prepared to address this issue may find themselves ill-equipped to retain and compensate their valuable employees.

The most common employee requests for same-sex spouse benefits are for coverage under health and dental plans and spousal survivor annuity coverage under defined benefit pension plans. When presented with a request to provide benefits to same-sex spouses under any type of employee benefit plan, an employer should ask the following questions:

Question One:

Where was the marriage performed?


The jurisdiction in which the same-sex marriage was performed affects the “legality” of the marriage, and thus, the plan’s obligation to recognize it. Was the employee legally wed in California, Massachusetts or Canada, for example? Or, did the employee participate in a marriage of “civil disobedience” performed in various locations around the United States (including San Francisco in 2004 and counties in New Mexico, New Jersey, Oregon and upstate New York) but not recognized by any state?

Question Two

Where does the employee live?

The employer’s response might also depend on whether the employee lives in a state with a mini-DOMA or a state with no mini-DOMA. If the employee lives in a mini-DOMA state, the employer does not have to recognize same-sex marriages for plan eligibility purposes, although many employers voluntarily choose to extend eligibility in this situation. If eligibility is extended, it is considered an optional benefit akin to a domestic partner benefit program. (Note the tax consequences discussed below.)

If the employee resides in a state without a mini-DOMA, the employer may have to recognize same-sex marriage for plan eligibility purposes, depending on whether the plan is a self-insured plan or a fully insured plan. This is because self-insured plans (i.e., plans that pay benefits out of company general assets) are governed only by federal law (including ERISA and the Internal Revenue Code) and have the flexibility to recognize or not recognize otherwise valid same-sex marriages.

However, insured plans are subject to state law benefit mandates and may have to recognize same-sex marriages depending upon where the policy is issued. For example, under the California Insurance Equality Act, insurance policies issued in California must cover registered domestic partners, and insurance policies in Massachusetts now cover same-sex spouses.

Question Three

What is the plan’s definition of “spouse”?

In addition to determining what law applies to the plan, employers must decide how to define or interpret the term “spouse.” If the plan does not define the term or simply incorporates a state law definition of spouse, it should be amended to clarify the definition the employer wishes to use.

Tax Consequences

If an employer does cover same-sex spouses under its plans, it must understand the related tax consequences. The federal DOMA provides that, for all purposes of federal law, the definition of “marriage” is limited to the legal union between one man and one woman as husband and wife, and the word “spouse” means only a person of the opposite sex.

For example, the federal DOMA prevents same-sex spouses from receiving benefits offered under federal statutes, including the Family Medical Leave Act, ERISA and the Internal Revenue Code. As a result, same-sex spouses (e.g., those legally married in states that recognize same-sex marriaegs) will not receive any federal tax advantages associated with employee benefit plans unless the same-sex spouse meets the Internal Revenue Code definition of “dependent.”

Unless the same-sex spouse otherwise qualifies as a dependent for federal income tax purposes, the employer must impute income to the employee equal to the fair market value of the health coverage given to the same-sex spouse. In addition, the employee may not make pre-tax contributions to a section 125 cafeteria plan on behalf of the same-sex spouse (i.e., contributions for the spouse must be after tax) and may not receive reimbursement for the expenses of the same-sex spouse from flexible spending accounts (FSAs), health reimbursement accounts (HRAs) or health savings accounts (HSAs).

State tax treatment depends again on whether the employee resides in a mini-DOMA state or a state without a mini-DOMA. In mini-DOMA states, employers must impute income for state tax purposes equal to the fair market value of the benefit coverage provided to same-sex “spouses” as they do for federal tax purposes. (The New York State Department of Taxation and Finance recently issued two advisory opinions confirming this treatment for New York residents.)

On the other hand, in the six states that do not have laws or constitutional provisions limiting marriage to one man and woman, which states might recognize same-sex marriage, and in states that have special laws favoring domestic partners or civil union partners (e.g., California), employers might have to subtract, for state tax purposes, any income imputed to the employee for federal tax purposes, thereby creating an additional administrative hurdle.

Steps Employers Should Take Now

Whether or not faced with a request for benefits from a same-sex couple, employers should consider the following issues in formulating their policies:

Analyze existing HR policies.If the employer has a policy banning sexual orientation discrimination, the employer might wish to cover same-sex spouses, regardless of legal requirements, in order to avoid the possibility of lawsuits by same-sex spouses for sexual orientation discrimination.



With respect to non-ERISA plans, the employer might want to consider whether state or local laws prohibit employment discrimination on the basis of sexual orientation. Numerous states (including Illinois) have such laws that could easily apply to a failure to provide employee benefits. In New Hampshire, for example, a district court found that a public employer’s refusal to provide health and leave benefits to same-sex couples violated the state’s anti-discrimination statute.

Determine the home state’s legal requirements.If the employer’s home state recognizes same-sex marriages, the employer may have to cover same-sex spouses in its fully insured plans, and the employer should consider amending its plans to cover same-sex spouses.

If, however, the employer’s home state does not recognize same-sex marriages, then the employer’s plans might not have to cover same-sex spouses. In this case, the employer should consider amending its plans to reflect the DOMA definition of “spouse.” Obviously, this analysis can be very complicated for employers operating in multiple states.

Talk to the health insurance provider.Determine what action vendors and insurers are taking and where the insurance policies are sited. Depending on which state insurance laws govern the insurer, the insurer might require that the employer provide coverage of domestic partners and/or same-sex spouses that the employer has not considered.

Review plan documents, summary plan descriptions, enrollment forms and administrative procedures.Inventory where the employer’s plan documents use the term “spouse.” Consider adding, clarifying or amending the definition of “spouse” and requiring additional proof of employee marriages (e.g., spouse’s sex, state of marriage and licenses).

Ensure that all plan documents have appropriate Firestone language providing for plan administrator discretion in interpreting the plan.

Coordinate same-sex spouse and domestic partner coverage.If the employer has a domestic partner plan, the employer might wish to enroll same-sex spouses as domestic partners, even if the employer is in a mini-DOMA state.

Note that “spousal” coverage under an employer’s health plan might cost less and have different state income tax treatment than domestic partner coverage. The employer should carefully consider the potentially discriminatory consequences of imposing any domestic partner eligibility requirements on same-sex couples that the employer does not impose on opposite-sex couples.

If the employer does not have a domestic partner plan, it might wish to rely on the federal and/or state DOMAs to exclude same-sex spouses from its plans.

Ensure that the payroll department can address taxation issues.To the extent that the employer will provide any sort of same-sex or domestic partner coverage, it will need to work with its payroll department to ensure that the payroll department can accurately comply with the tax consequences described above.

Communicate to employees.If the employer chooses to provide coverage to same-sex spouses and/or domestic partners, the employer should consider how to best communicate its offering. There might be employee recruiting and retention advantages and possibly customer contracting advantages the employer might want to highlight.

However, these benefits might offend some employees, shareholders or customers, so the employer might decide that a more low-key rollout is appropriate.

Stay abreast of local and national legislation. This area of law is evolving constantly, and developments occur on an almost weekly basis. For instance, one week prior to the California Supreme Court ruling, the Michigan Supreme Court ruled that a 2004 amendment to Michigan’s constitution prohibited public entities in the state from providing domestic partner benefits.

Copyright © 2008 by McDermott Will & Emery LLP.All rights reserved. Used with permission.

Todd A. Solomon and Joseph S. Adams are partners in the employee benefits department in the law firm of McDermott Will & Emery LLP based in the Chicago office. Brett R. Johnson and Megan Mardy are associates in the employee benefits department in the firm’s Chicago office.​​

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