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The Effects of Same-Sex Marriage on Employee Benefits
On May 15, 2008, the California Supreme Court held that same-sex couples have the same right to be married as opposite-sex couples under the California Constitution. Same-sex marriages began on June 15, 2008. The controversial proposition amending the California Constitution to prohibit same-sex marriage, Proposition 8, was passed in November 2008. However, the California Attorney General has opined that the amendment does not appear to be retroactive, so the marriage licenses obtained by same-sex couples prior to that date may remain effective. (Until this issue is resolved by the California Supreme Court, employers should treat same-sex marriages performed prior to the passage of Proposition 8 as valid.)
In addition, Massachusetts and Connecticut perform same-sex marriages, and the State of New York recognizes marriages between same-sex couples that have taken place elsewhere. The remaining states are divided between those with laws prohibiting the recognition of same-sex marriages performed in other states, and those which may recognize same-sex marriages performed in other states.
Employers are not required to offer any particular benefits to same-sex spouses under ERISA and tax-qualified plans; however, due to State law conflicts with the federal Defense of Marriage Act (“DOMA”), employers must consider the definitions of “spouse” and similar terms in their employee benefit plans and clarify the definitions to avoid fiduciary liability and IRS disqualification issues.
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