July 3, 2013
Authored by: benefitsbclp
Section 3 of the Defense of Marriage Act was found to be unconstitutional by the Supreme Court last week in United States v. Windsor, No. 12-307. This action has created more questions than answers for employers and administrators of ERISA plans. Most of this uncertainty centers on the fact that the Supreme Court’s decision did not address Section 2 of DOMA, which provides that states do not have to give full faith and credit to the laws of another state which recognizes same-sex marriage. However, for federal law purposes, the government will look to state law to determine whether someone is a spouse. This creates uncertainty as to whether the state of residence of an employee or plan participant will dictate whether he or she is or has a spouse at the time a right arises or action is required. We are hopeful that federal agencies will immediately issue guidance on this issue. If a spousal benefit issue arises before then that involves these facts, additional consideration is recommended.
Same-sex marriages are permitted in California, Connecticut, Delaware, the District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota (effective August 1, 2013), New Hampshire, New York, Rhode Island (effective August 1, 2013), Vermont and Washington (the Same-Sex Marriage States). Employers and plan administrators with employees and participants in these states may have immediate issues to address.
To begin the process of unfolding the effect of the Windsor decision, we recommend the following steps: