This article describes steps that should be taken regarding employee benefit plans in light of the Supreme Court’s recent decision in U.S. v. Windsor declaring part of the federal Defense of Marriage Act (“DOMA”) unconstitutional, and subsequent federal agency guidance, including IRS Revenue Ruling 2013-17, under which same-sex couples who are legally married in jurisdictions that recognize same-sex marriages are thereafter considered married for federal tax purposes regardless of where they reside.

Background on DOMA and Windsor

DOMA was signed into law in 1996 and contains two main provisions. Section 2 of DOMA provides that U.S. states, territories, possessions and Indian tribes are not required to recognize same-sex marriages performed in other jurisdictions. Section 3 of DOMA provides that for purposes of all federal laws, regulations, and interpretations thereof, the word “marriage” is limited to a definition of a union of one man and one woman, and the word “spouse” refers only to a person of the opposite sex.

The plaintiff in Windsor was married in Canada to a same-sex partner and resided in New York. Upon her spouse’s death and subsequent distribution of her spouse’s estate, the plaintiff sought to claim the federal estate tax exemption for surviving spouses but had her claim rejected because she did not meet the definition of “spouse” under Section 3 of DOMA. In Windsor, the Supreme Court held that Section 3 of DOMA is unconstitutional under the Due Process Clause of the Fifth Amendment. However, the parties to the litigation did not address the constitutionality of Section 2 of DOMA, and the Supreme Court did not consider the question. Therefore, pending further litigation, Section 2 of DOMA has not been overturned or ruled unconstitutional. The Supreme Court’s ruling in Windsor became effective on July 23.

Recognition of Same-Sex Marriage Under State Law

Because Section 2 of DOMA has not yet been ruled invalid or unconstitutional, individual states may still refuse, for state law purposes, to recognize same-sex marriages performed in other jurisdictions. Thirty-five states have either passed legislation or amended their state constitutions to provide that same-sex marriages performed in other jurisdictions are not recognized or given effect.

Summary of Federal Agency Guidance

Internal Revenue Service

On August 29, the IRS issued Revenue Ruling 2013-17 (the “Revenue Ruling”) and two accompanying sets of Frequently Asked Questions. The Revenue Ruling provides that for all federal tax purposes, including for employee benefits, a same-sex couple will be considered married if the couple was married in any jurisdiction (including jurisdictions outside the United States) that recognize such marriages, regardless of where the individuals currently reside. Thirteen states currently permit same-sex marriages: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington, as well as the District of Columbia. Individuals who have entered into civil unions, domestic partnership, or other similar arrangements that are not denominated as marriages under state law are not considered married for federal tax purposes.

One set of Frequently Asked Questions issued in connection with the Revenue Ruling (the “Same-Sex Marriage FAQs”), which is applicable prospectively beginning on September 16, 2013, provides several key items of guidance:

  • It states that “[a] qualified retirement plan must treat a same-sex spouse as a spouse for purposes of satisfying the federal tax laws relating to qualified retirement plans.”
  • It provides that individuals in same-sex marriages may file amended returns for open taxable years (generally 2010, 2011 and 2012) to claim refunds of income tax and employment tax paid with respect to health or fringe benefits provided to a same-sex spouse that were previously not excludable from taxable income.
  • An employer may also claim refunds for its share of employment tax paid with respect to such health or fringe benefits. This is true even if the employer is unable to locate the employee who received the benefits.
  • Finally, the Revenue Ruling states that the IRS “intends to issue further guidance on the retroactive application of the Supreme Court’s opinion in Windsor to other employee benefits and employee benefit plans and arrangements.”

The Same-Sex Marriage FAQs indicate that in future guidance, the IRS will provide a streamlined administrative procedure for employers to file claims for refunds of employment tax overpayments in connection with previously taxable benefits.

Department of Labor

On August 9, the Department of Labor updated Wage and Hour Division Fact Sheet 28F, which provides guidance on qualifying reasons for leave under the Family and Medical Leave Act (“FMLA”). The revised Fact Sheet includes in the definition of “Spouse” “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.” An internal Department of Labor memorandum stated that this update is “one of many steps” the Department of Labor will take to implement the Windsor decision in the coming months.

Current State of the Law

Qualified Retirement Plans

As noted above, the Same-Sex Marriage FAQs indicate that qualified plans must treat same-sex spouses as spouses for purposes of meeting the requirements of federal tax law. It is unclear at this point what amendments, if any, to qualified plan documents will be required to comply with the requirements set forth in the Revenue Ruling and the Same-Sex Marriage FAQs. The Same-Sex Marriage FAQs indicate that the IRS will issue further guidance on compliance issues related to qualified retirement plans, including any requirements for plan amendments and the timing of such amendments.

The impact of the Revenue Ruling and the Same-Sex Marriage FAQs on qualified retirement plans includes but, is not limited, to the following issues:

  • A same-sex spouse will be the default beneficiary under a qualified retirement plan if the employee did not complete a beneficiary designation form.
  • If a qualified retirement plan is subject to the qualified joint and survivor annuity (QJSA) rules, the plan will need to provide a qualified joint and survivor annuity option to a participant’s same-sex spouse.
  • The qualified retirement plan rules regarding spousal consent in connection with certain loans and distributions will apply to a same-sex spouse of a plan participant.
  • Required minimum distributions from qualified retirement plans to same-sex spouses will be calculated under the same rules that apply to opposite-sex spouses.
  • A qualified plan participant’s former same-sex spouse will be eligible to receive plan benefits pursuant to a qualified domestic relations order (QDRO).

Health and Welfare Benefits

Under the Revenue Ruling, health benefits provided to a same-sex spouse are now excludable from taxable income for Federal income tax purposes. Therefore, for cafeteria plan purposes, same-sex married couples will now be considered married regardless of where they reside. Again, pending further guidance, it is unclear whether an amendment to a cafeteria plan document will be required. It is also not clear whether this change in applicable standards constitutes a “change in status” for purposes of whether an open enrollment event exists under a cafeteria plan, and, if so, whether that event would have occurred when the Windsor decision was issued or as of September 16, 2013.

Neither the Revenue Ruling nor the Same-Sex Marriage FAQs require that same-sex couples be considered married for group health plan or other welfare plan purposes. However, it is possible that forthcoming federal agency guidance, federal court decisions, or future federal legislation will impact an employer’s ability to limit the provision of benefits under such plans to opposite-sex couples only. While there is no specific prohibition against discrimination on the basis of sexual orientation under Title VII of the Civil Rights Act or similar Federal statutes, an increasing number of state and local jurisdictions have enacted prohibitions on discrimination on the basis of sexual orientation. As applied to employee benefit plans, these state and local laws may be pre-empted by ERISA. However, state insurance laws, which may impact group health plans and similar benefits, are not pre-empted by ERISA. This will likely be a developing area of law, which we will continue to monitor on behalf of our clients.

The impact of the Revenue Ruling and the Same-Sex Marriage FAQs on health and welfare plans includes but is not limited to the following issues:

  • Health and welfare benefits provided to a same-sex spouse and his or her children will not be taxable for Federal income tax purposes and will not be reported on the employee’s Form W-2. These amounts, however, may be taxable for state income tax purposes if the employee resides in a state that does not exclude the value of these benefits from income for state income tax purposes.
  • A same-sex spouse will be eligible for continuation coverage under COBRA.
  • An employee will be able to receive reimbursements for qualifying medical expenses for a same-sex spouse (and the spouse’s children) from a health flexible spending account or a health reimbursement account, and to receive reimbursements for qualifying dependent care expenses for a same-sex spouse (and the spouse’s children) from a dependent care flexible spending account.
  • A special open enrollment period for health and welfare benefits may be necessary as a result of same-sex spouses and their children becoming eligible for such benefits.
  • An employee with a same-sex spouse may be entitled to make a mid-year cafeteria plan election change given that health and welfare benefits for the spouse (and his or her children) are no longer taxable, resulting in a significant decrease in the cost of coverage for the employee.
  • Employers and employees may amend tax returns for open years to claim refunds of employment tax – and, in the case of employees, income tax – paid with respect to welfare benefits provided to same-sex spouses and their children in prior years (for further details, see the “Summary of Federal Agency Guidance” section above).

Family and Medical Leave Act

Based upon the Department of Labor guidance described above, employers may limit the availability of FMLA leave to opposite-sex spouses in states where same-sex marriage is not recognized. This approach is in contrast with the stance taken by the IRS, under which a same-sex married couple’s marital status is not determined under the laws of the state in which the couple resides. Section 2 of DOMA has not been declared invalid or unconstitutional, which may serve as the basis for individual states to refuse to recognize same-sex marriages performed in other jurisdictions for state law purposes.

Steps to Be Taken Pending Further Guidance

At this time, employers and plan sponsors should begin to identify areas where benefit programs are impacted by a participant’s marital status. The impact on specific benefits offered by employers as a result of the most recent governmental guidance will likely be far-reaching. For example, an existing beneficiary designation that does not include a spousal consent because the employee’s same-sex spouse was not previously considered a spouse should be corrected, and qualified retirement plans must as an operational matter begin to offer qualified joint and survivor annuities to same-sex spouses. Pending further guidance from the IRS, plan sponsors may be required to make these and other changes by the adoption of plan amendments.

Employers and plan sponsors should also begin contacting third-party benefits administrators and recordkeepers to determine what steps will need to be taken in order to make benefits available to same-sex spouses, as well as reviewing internal benefit and payroll information systems to determine how marital status information is recorded and updated.