Editor’s note: Along with their alert on the IRS recent guidance on confirming the previously announced one-year transition rule for the employer “shared responsibility” mandate and related reporting obligations under the Affordable Care Act, our colleagues in in the Employee Benefits & Executive Compensation Practice Group have put out an alert on the U.S. Supreme Court’s recent ruling in United States vs. Windsor. The complete text of the alert appears below.
Supreme Court Rules Defense of Marriage Act Unconstitutional — What Does this Mean for Plan Sponsors?
The U.S. Supreme Court recently paved the way for legally married same-sex spouses to have the same federal rights and benefits as married opposite-sex spouses. In United States vs. Windsor, the Court struck down as unconstitutional the federal definition of “marriage” as only between a man and a woman and the definition of “spouse” as a legally married person of the opposite sex.
The Court found that Section 3 of the Defense of Marriage Act (DOMA), which defines “marriage” and “spouse” for purposes of applying federal laws, violates the equal protection guarantees under the Fifth Amendment by not recognizing a same-sex marriage permitted by a state. This means that if a same-sex marriage is legal under state law, it must now be recognized for federal law purposes. Notably, the Court let stand the states’ right to refuse to recognize same-sex marriages lawfully performed in other states.
The Court’s decision will affect over 1,000 federal laws including the Internal Revenue Code, the Employee Retirement Income Security Act (ERISA), the Consolidated Omnibus Budget Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA) and the Family Medical Leave Act (FMLA), and will have a significant impact on employer-sponsored employee benefit plans and policies.
Effect on Plans and Policies
Employer obligations under retirement and health and welfare plans and employee policies will be affected to the extent any rights or benefits are tied to the definition of “spouse.” As a result, amendments to plan documents and changes to administrative policies may be required. However, as discussed below, additional guidance is needed on the timing for implementing any related changes and how same-sex spouses, lawfully married in one state but currently living in a non-recognition state, will be treated under federal law.
Significant changes to employee benefit plans include the following:
Health and Welfare Plans
Imputed Income — The cost of employer provided health, dental and vision benefits for covered same-sex spouses and their covered children will no longer be subject to federal income tax.
Pre-Tax Expense Reimbursements — Reimbursement under a flexible spending account (FSA), health reimbursement account (HRA) or health savings account (HSA) may be made for covered expenses of same-sex spouses and their children on a tax-free basis for federal tax purposes to the same extent as available to opposite-sex spouses.
Dependent Care — Dependent care accounts may be used to pay eligible expenses for care provided to the children of same-sex spouses.
COBRA — Same-sex spouses are eligible for continuation coverage under COBRA.
Special Enrollment and Election Changes — Same-sex spouses are eligible for special enrollment rights under HIPAA and applicable change-in-status events under Internal Revenue Code Section 125.
Spousal Consent — If federal law requires spousal consent to name a non-spouse beneficiary, a same-sex spouse’s consent will be required.
QDROs — Plan fiduciaries must recognize domestic relations orders obtained by same-sex spouses, subject to plan QDRO procedures.
Surviving Spouse Benefits — If required for opposite-sex spouses, qualified pre-retirement survivor annuities must be paid to same-sex spouses unless coverage has been waived and the same-sex spouse consents to the waiver.
QJSA Payments — Same-sex spouses are entitled to qualified joint and survivor annuity protection unless a different form of payment is elected with the spouse’s consent.
Hardship withdrawals — Hardship withdrawals under the safe-harbor definition will be available for same-sex spouses’ medical, tuition and funeral expenses.
Rollover — Same-sex spouses may roll over a distribution from the plan sponsor’s plan to their own individual retirement account (IRA) or another employer’s qualified plan. Previously, a same-sex spouse could only roll over a distribution to an inherited IRA.
Required Minimum Distributions — Same-sex spouses will be permitted to defer required minimum distributions until the deceased participant would have reached his or her required beginning date after age 70 1/2.
FMLA — Employees will have the right under the FMLA to take a leave of absence to care for a same-sex spouse with a serious health condition.
Applying State Marriage Laws — Who is a Legally Married “Spouse”?
Twelve states  and the District of Columbia currently permit same-sex marriage. It is clear from the Court’s ruling that same-sex spouses who reside in these states, or in states that recognize same-sex marriages legally performed in other states, now are entitled to the same federal benefits and protections afforded to opposite-sex spouses. What is not clear is how federal laws will be applied if a same-sex spouse, lawfully married in one state, moves to another state that does not recognize same-sex marriage or lives in a state that recognizes same-sex marriage but works in a state that does not. While there is some precedent for the IRS and other federal government agencies to recognize a marriage validly performed in any state regardless of a person’s current state of residence, the IRS has acknowledged the need for additional guidance on the implications of the Court’s decision, and has stated that it intends to issue such guidance in the near future.
Plan sponsors may still choose to provide equivalent benefits for same-sex partners in states that do not recognize same-sex marriage and those in civil unions or domestic partnerships. However, as was the case previously for all same-sex spouses, there will be different treatment under certain federal laws (imputed income on health benefits, limitations on rollovers, etc.). State tax treatment is not affected by the ruling and, as before, may vary from federal tax treatment.
The Court’s decision becomes final on or about July 22, 2013. Whether its impact on employee benefit plans will be applied retroactively is yet to be determined. Retroactive application may mean that employee benefit plans could be liable for actions taken before the Windsor decision that were in compliance with DOMA at that time. For example, if a pension plan provides only a spousal death benefit, could a legally married same-sex spouse of a previously deceased participant have a claim? Similarly, are employees and employers entitled to claim a refund for taxes paid on imputed income for health benefits provided to a same-sex spouse? As noted above, the IRS and other federal agencies are reviewing the Court’s decision and intend to provide guidance on when and how these changes should be implemented.
What to Do Now
As we await further guidance, plan sponsors may want to consider taking the following actions:
- Review how the term “spouse” is used in plan documents and policies. Consider whether to amend the plan’s definition of spouse or change the criteria for benefits for same-sex spouses and also for domestic partnerships and civil unions. While some changes will be mandatory, others will be in the plan sponsor’s discretion.
- Stop imputing income for health, dental and vision coverage for same-sex spouses in states that recognize same-sex marriage.
- Contact vendors, including recordkeepers, insurers, etc. to determine the cost and time frames necessary to make required system and administrative changes.
- Assess what payroll system updates and administrative process changes are needed.
- Review participant communications, including summary plan descriptions, beneficiary designation and consent forms, enrollment forms, etc., to determine what changes need to be made.
- Determine whether a specific employee communication regarding the implications of the Supreme Court ruling is desired (e.g., to acknowledge the ruling and note what steps the plan sponsor is or may take while awaiting further regulatory guidance).
- Consider whether to seek a refund for previously paid employment taxes on medical, dental and vision coverage provided to same-sex spouses.
We are following these issues closely and will keep you posted on any agency guidance about the timing or implementation of the changes.
 Connecticut, Delaware (effective July 2013), Iowa, Maine, Maryland, Massachusetts, Minnesota (effective August 2013), New Hampshire, New York, Rhode Island (effective August 2013), Vermont and Washington. In addition, in Hollingsworth v. Perry the Supreme Court reinstated a California court’s order allowing same-sex marriages.