How Does the Repeal of DOMA Affect Healthcare

Copyright 2014- Not to be reproduced without express permission of Benefit Express Services, LLC
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Defense of Marriage Act -Repeal
Review
Impact on Qualified Retirement
Plans, Health & Welfare Plans and
Tax Issues
By
Larry Grudzien
Attorney at Law
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Introduction
• Same-Sex Marriage: DOMA Ruled Unconstitutional:
 The U.S. Supreme Court ruled in United States v. Windsor (U.S., No. 12-307,
6/26/13) that §3 of the Defense of Marriage Act's exclusion of state-sanctioned,
same-sex marriages from the federal definition of marriage is unconstitutional.
 DOMA, enacted in 1996, defined marriage as being only between one man and
one woman.
 The Supreme Court, however, did not address whether same-sex couples have
a right to marry, so states may still prohibit same-sex marriages.
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• Same-Sex Marriage: State Laws:
 As of April 2014, there are 17 states, plus the District of Columbia (2009), in
which same-sex marriage ceremonies legally can be performed.
 The states are: California (2013), Connecticut (2009), Delaware (2013), Hawaii
(2013), Illinois (2013), Iowa (2009), Maine (2012), Maryland (2013),
Massachusetts (2004), Minnesota (2013), New Hampshire (2009), New Jersey
(2013), New Mexico (2013), New York (2011), Rhode Island (2013), Vermont
(2009) and Washington (2012).
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Introduction

• Same-Sex Marriage: Recognition Between States:
 The Supreme Court's decision in United States v. Windsor, which struck down
DOMA's definition of marriage as only between one man and one woman, cleared
the way for same-sex married couples to become eligible for federal benefits, but
the Supreme Court remained silent on the issue of same-sex marriage
recognition between states. “State of Celebration” Rule.
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Introduction

• Same-Sex Marriage: Recognition Between States:
 Under this approach, same-sex marriages will be considered valid for all tax and
employee benefit purposes as long as the couple was married in a state that
recognizes same-sex marriage, regardless of the couple's current state of
domicile.
 This approach was formalized by IRS Rev. Rul. 2013-17 and DOL Technical
Release 2013-04.
 However, prior to the IRS and DOL guidance, several states already had enacted
laws clarifying that their state would recognize same-sex marriages originated in
other states
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Introduction

• Same-Sex Marriage: Cafeteria Plans
 In light of Windsor, IRS Notice 2014–1 provided that cafeteria plans may allow
midyear election changes for plan participants who were legally married to same-
sex spouses as of the date of the Supreme Court decision (June 26, 2013) and
may allow midyear election changes for same-sex couples who entered into
marriage after the date of the Windsor decision.
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Introduction

• Same-Sex Marriage: §3 Ruled Unconstitutional
 The U.S. Supreme Court ruled in United States v. Windsor that §3 of the
Defense of Marriage Act's exclusion of state-sanctioned, same-sex marriages
from the federal definition of marriage is unconstitutional.
 Prior to the striking down of DOMA §3, that section stated that, “In determining
the meaning of any Act of Congress, or of any ruling, regulation, or
interpretation of the various administrative bureaus and agencies of the United
States, the word ‘marriage' means only a legal union between one man and
one woman as husband and wife, and the word ‘spouse' refers only to a
person of the opposite sex who is a husband or a wife.”
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Same-Sex Marriage: DOMA
Struck down

• Same-Sex Marriage: Windsor v. United States
 The Supreme Court ruled 5-4 in U.S. v. Windsor that DOMA §3's exclusion of
state-sanctioned, same-sex marriages from federal recognition is
unconstitutional under the U.S. Constitution's Equal Protection Clause because
it denies equal dignity to a singled-out group.
 The case arose when Windsor sued the federal government under the U.S.
Constitution's Equal Protection Clause after her wife died, seeking the right to
use the exemption from the federal estate tax for an estate passed to a
surviving spouse.
 The government had denied her refund request based DOMA §3's exclusion of
same-sex couples from its definition of marriage, even though the state of New
York recognized her marriage as legal.
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Struck down

• Same-Sex Marriage: Windsor v. United States
 By operating to deny New York resident Windsor a surviving spouse federal
estate tax exemption following her wife's death in 2009, DOMA violates
guarantees of equal liberty to all persons under the Fifth Amendment to the
U.S. Constitution, the court decided.
 DOMA's operation in precluding Windsor from receiving a federal tax refund
for her deceased wife's estate demonstrated to the court that §3's operation in
practice confirmed its exclusionary purpose, the Supreme Court said.
 “By creating two contradictory marriage regimes within the same State,”
Supreme Court Justice Anthony Kennedy concluded, “DOMA forces same-sex
couples to live as married for the purpose of state law but unmarried for the
purpose of federal law, thus diminishing the stability and predictability of basic
personal relations the State has found it proper to acknowledge and protect.”
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Struck down

• Same-Sex Marriage: Definition of ‘Spouse' and ‘Marriage'
 After the Supreme Court ruling in Windsor, the DOL's Employee Benefits
Security Administration (EBSA) said in DOL Technical Release 2013-04 that the
terms “spouse” and “marriage” under ERISA and related guidance include
same-sex legally married couples.
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Struck down

 “State of Celebration” Rule:
▪ Applying the “state of celebration” rule, DOL said “the term ‘spouse’ will refer to any
individuals who are lawfully married under any state law, including individuals married to a
person of the same sex who were legally married in a state that recognizes such
marriages, but who are domiciled in a state that does not recognize such marriages.
▪ Similarly, the term ‘marriage’ will include a same-sex marriage that is legally recognized as
a marriage under any state law.”
▪ Also, the terms “spouse” and “marriage” don't include “individuals in a formal relationship
recognized by a state” that isn't considered a marriage under that state's law, including
domestic partnerships and civil unions, the technical release said.
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Struck down

 “State of Celebration” Rule:
▪ Technical Release 2013-04 also stated that “recognition of ‘spouses' and ‘marriages' based
on the validity of the marriage in the state of celebration, rather than based on the married
couple's state of domicile, promotes uniformity in administration of employee benefit plans
and affords the most protection to same-sex couples.”
▪ Under the guidance, the term state means any state of the U.S., the District of Columbia,
Puerto Rico, the Virgin Islands, American Samoa, Guam and any other territory or
possessions of the U.S., and also includes “any foreign jurisdiction having the legal
authority to sanction marriages.”
 (DOL Technical Release 2013-04; IRS Revenue Ruling 2013-17).
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Struck down

• In response to changes in same-sex marriage recognition and revisions to
the definitions of “spouse” and “marriage,” changes also have been made
in pension and Social Security benefits, including:
 Social Security Benefits: As of August 2013, the Social Security Administration
(SSA) had begun processing and paying claims for same-sex spousal retirement
benefits, an SSA news release said.
(http://www.socialsecurity.gov/pressoffice/pr/doma-statement-pr.html). Thus, SSA
encourages same-sex married persons who think they are eligible for benefits to
submit their applications.
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Same-Sex Marriage: Post-
Windsor Pension Plan Guidance

• In response to changes in same-sex marriage recognition and revisions to
the definitions of “spouse” and “marriage,” changes also have been made
in pension and Social Security benefits, including:
 Federal Government Survivor Benefits: Retirees in legal same-sex marriages have
until June 26, 2015, to inform the U.S. Office of Personnel Management (OPM) that
they are in a legal same-sex marriage and that they have chosen make changes to
their retirement benefits.
 Current retirees need to determine whether changing their pension benefits in a
way that would provide surviving spouse benefits would make sense for them,
since making that election likely would result in a reduction in their current
monthly annuity.
 Going forward, the same-sex spouses of retiring employees will be eligible for
survivor annuities.
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• Qualified Joint and Survivor Annuity (QJSA): QJSAs provide annuity
payments for the life of both the plan participant and the participant's
spouse, upon the participant's death.
• Married plan participants automatically receive their plan benefits in the
form of a QJSA, unless both the participant and the participant's spouse
waive their survivor rights in writing.
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• Qualified retirement plans must comply with provisions under Rev. Rul.
2013-17 that require recognition for federal tax purposes of same-sex
marriages validly entered into under state law.
• Plans must obtain the consent of a same-sex spouse for the married
participant to receive plan benefits in a form other than a QJSA.
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• Qualified Pre-retirement Survivor Annuity (QPSA): If a participant dies
before retirement, then the spouse may receive a qualified preretirement
survivor annuity (QPSA), unless the participant and spouse both waive
their rights to that benefit.
• Similar to the waiver rules under a QJSA, a participant in a same-sex
marriage would need to waive the right to the QPSA benefit under the
requirements of Rev. Rul. 2013-17.
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• Same-Sex Marriage: Windsor Doesn't Have to Be Applied Retroactively
 The IRS and the Treasury Department, in Notice 2014-19 (FAQs included), issued
guidance related to the Supreme Court's Windsor decision and lingering
questions regarding whether the Windsor decision must be applied retroactively
to determining pension plan benefits for same-sex married couples.
 According to the notice, the IRS said qualified retirement plans aren't required to
apply the United States v. Windsor ruling retroactively to periods before the date
of the high court ruling on June 26, 2013.
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• The IRS said that plans wouldn't run afoul of tax qualification requirements
under Notice 2014-19 if they failed to comply before Sept. 16, 2013, the
effective date of Revenue Ruling 2013-17, which set forth the “state of
celebration” rule.
• Under Rev. Rul. 2013-17, same-sex married couples must be recognized as
legally married for all federal tax purposes, regardless of where they live,
so long as they were married in a jurisdiction that legally performs same-
sex marriages.
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 Pension Plan Amendments: In light of the Windsor decision and guidance in
Notice 2014-19, retirement plan sponsors must amend their plans as of the later of
the deadline under §5.05 of Revenue Procedure 2007-44, which provides the
general deadline for adopting interim or discretionary plan amendments or its
successor, or Dec. 31, 2014, the notice said.
 In the case of a governmental plan, amendments aren't required to be adopted
before the close of the first legislative session of the legislative body with the
authority to amend the plan that ends after Dec. 31, 2014, the notice said.
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• In response to the Supreme Court's decision on DOMA §3, the following
federal government benefits have been extended to same-sex married
couples, including:
 FSAs and HSAs (Spouses and Children): Under Rev. Rul. 2013-17, employees in
legal same-sex marriages will be able to include their same-sex spouses and
any newly qualified children or stepchildren in their flexible spending accounts
(FSAs) under tax code §125 or health savings accounts (HSAs) under tax code
§223.
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couples, including:
 FSAs and HSAs (Midyear Election Changes): Under Notice 2014–1, employees
with legal same-sex spouses can make midyear election changes to their FSAs
and HSAs to include such spouses or other legal dependents.
 Such election changes must be filed “any time during the FSA or HSA plan year
that includes June 26, 2013 (date of United States v. Windsor decision) or the
FSA or HSA plan year that includes December 16, 2013,” the notice said.
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couples, including:
 Federal Health Care Benefits for Spouses, Children and Stepchildren: Under the
Federal Employee Health Benefits (FEHB) program, legally married same-sex
spouses are considered eligible family members under self and family
enrollment.
 In addition, the children of same-sex married couples are considered eligible
family members under the same guidelines as those that cover children of
opposite-sex marriages, including coverage for same-sex spouses' stepchildren.
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Windsor Health Care Benefits

couples, including:
 Federal Health Care Benefits for Children: Under federal government health
care programs, children of same-sex domestic partners may obtain coverage,
but only for those living in states where same-sex couples are not allowed to
marry.
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couples, including:
 Group Life Insurance for Same-Sex Spouses and Children: Legally married
same-sex spouses and children of legal same-sex marriages are eligible family
members under the Federal Employee Group Life Insurance Program (FEGLIP),
under which employees may add coverage for a same-sex spouse and any
newly eligible children.
 Federal Dental and Vision Insurance for Same-Sex Spouses: All legally married
same-sex spouses have become eligible family members under a “self and
family” enrollment or a “self plus one” enrollment in the optional Federal
Employee Dental and Vision Insurance Program (FEDVIP), which is intended to
supplement the FEHB program for those who want additional dental and vision
benefits.
 Federal Long-Term Care Insurance for Same-Sex Spouses: Legally married
same-sex spouses can apply for long-term care insurance under the Federal
Long-Term Care Insurance Program (FLTCIP), which is an optional program.
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• Same-sex married couples will be recognized as legally married for all
federal tax purposes, regardless of where they live, so long as they were
married in a jurisdiction that recognizes such marriages as legal, the
Treasury Department and the IRS said in Revenue Ruling 2013-17, which
implements federal tax aspects of the DOMA §3 decision.
• The guidance in Rev. Rul. 2013-17 applies to any same-sex marriage legally
entered into in any of the 50 states, the District of Columbia, U.S. territories
or a foreign country, the Treasury said.
• However, the ruling does not apply to registered domestic partnerships,
civil unions or similar formal relationships recognized under state law.
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Same-Sex Marriage: Federal Tax
Guidance

• Same-Sex Spouses: Federal Income Tax for 2013: Legally married same-
sex couples generally must file their 2013 federal income tax return using
either the “married filing jointly” or “married filing separately” filing status,
the IRS said.
• Taxpayers who were in same-sex marriages prior to the ruling may choose
to file original, amended or adjusted returns to be treated as married for
federal tax purposes for prior tax years that are still open under the statute
of limitations.
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Guidance

• They also may file claims for credit or refunds for any overpayment of tax
resulting from the holdings, “so long as the applicable limitations period
for filing such claim under tax code §6511 has not expired,” the IRS said.
• The statute of limitations generally is open for the previous three tax years,
so refund claims still could be filed for tax years 2010, 2011 and 2012, the
IRS said.
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Guidance

• Same-Sex Spouses: Taxes on Health Insurance Coverage: For employees
who purchased same-sex spousal health insurance coverage from their
employer on an after-tax basis, such amounts paid for that coverage may
be treated as pre-tax and excludable from income, the IRS said.
• FSA Deduction Limits and Reimbursements: Regarding FSA
reimbursements, in Notice 2014–1, the IRS said cafeteria plans are allowed
to permit a participant's FSA to reimburse covered expenses incurred by a
participant's same-sex spouse starting either at the beginning of the
cafeteria plan year that includes the date of the Windsor decision (6/26/13),
or the date of marriage, whichever is later.
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Guidance

• Dependent Care FSA
 Same-sex married couples also are subject to the $5,000 contribution limit for
contributions to a dependent care FSA, the IRS said.
 If, prior to the Windsor decision, the couple contributed to separate dependent
care FSAs and the combined accounts now exceed the limit for married couples,
employers can reduce the contributions of the spouses for the remainder of the
year to avoid exceeding the limit, the IRS said.
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Guidance

• HSA Deduction Limits: In Notice 2014–1, for HSA contribution limits, same-
sex married couples are subject to the joint deduction limit for
contributions to an HSA, the IRS said.
• For calendar year 2014, the maximum yearly contribution to an HSA is
$6,550 ($6,650 for calendar year 2015) for an individual with family
coverage under a high-deductible plan.
• “This deduction limit applies to same-sex married couples who are treated
as married for federal tax purposes with respect to a taxable year,” the IRS
said, “including the 2013 taxable year.”
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Guidance

• If, prior to the Windsor decision, a same-sex married couple contributed to
separate HSAs and the combined accounts now exceed the limit for
married couples, employers may reduce the contributions of the spouses
for the remainder of the year to avoid exceeding the limit, or may distribute
excess contributions back to the employees before the tax return due date
for the spouses, the IRS said.
• The IRS also released a document for same-sex spouses, titled Answers to
Frequently Asked Questions (FAQs) for Individuals of the Same Sex Who
Are Married Under State Law (http://www.irs.gov/uac/Answers-to-
Frequently-Asked-Questions-for-Same-Sex-Married-Couples).
• (IRS Notice 2014–1; IRS Revenue Ruling 2013-17; IRS Release (IR-2013-
72) ).
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Guidance

• COBRA:
 Same sex spouses treated as qualified beneficiaries
 COBRA notice must now be provided
• HIPAA:
 Special enrollment rights
• FMLA: An employee can take leave for a serious medical condition,”
including military-family leave, of the same-sex spouse if the employee
lives in a state that allows same-sex marriage.
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Other Areas

• Domestic Partners: Employer Eligibility Requirements:
 Same-Sex Domestic Partners Defined: Same-sex domestic partners include
persons who are:
▪ at least 18 years of age,
▪ unmarried,
▪ not related by blood,
▪ each other's only domestic partner,
▪ sharing a primary residence and
▪ responsible for each other's welfare and financial obligations.
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Domestic Partners/Civil Unions:
Employer-Provided Benefits

• Domestic Partners: Employer Eligibility Requirements:
 Domestic Partnerships or Civil Unions: Some employers provide benefits
coverage to all eligible domestic partners, while others limit coverage to same-
sex partners. Typically, to receive benefits for a same-sex domestic partner,
employees must sign and file with the employer an affidavit declaring they meet
the eligibility criteria.
 Civil Unions: Some states have laws under which same-sex couples can enter
into civil unions, which are legally established, recognized and documented
unions that usually provide such couples with benefits that are comparable to
those provided to opposite-sex married couples.
 Not Considered Marriages: Under IRS Revenue Ruling 2013-17, civil unions or
domestic partnerships aren't considered marriages under federal law.
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• Domestic Partners or Civil Unions: Plan Enrollment and Documentation
Requirements
 Civil unions and domestic partnerships are not considered to be marriages
under federal law (IRS Rev. Rul. 2013-17), regardless of whether plan
participants live or work in states that recognize civil unions and domestic
partnerships.
 Employers can permit employees who have entered into domestic partnerships
or civil unions to enroll their domestic partners or civil union partners in
employee benefit plans.
 Benefits that employers may provide to either employees' domestic partners or
civil union partners may include: group health plans, disability and life
insurance, family and sick leave, retirement plan benefits, tuition
reimbursements and FSAs.
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Requirements
 To enroll their domestic partners or civil unions partners in employer-sponsored
benefits, such employees need to follow proper procedures for enrollment and
documentation, including:
 Benefit Plan Enrollments:
▪ Employers that allow employees to enroll their domestic partners or civil union partners
in employee benefit plans should ensure that such plan documents permit employees to
enroll these persons and that they include relevant definitions and terms that apply to
these relationships.
▪ For example, employers can define domestic partnerships to include both opposite-sex
and same-sex relationships.
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Requirements
 Benefit Plan Documentation: Employers that allow employees to enroll their
same-sex domestic partners or civil union partners in employee benefit plans
can require employees to provide documentation to establish that employees
have entered into domestic partnerships or civil unions.
 Examples of documents that employers can require employees to provide
include:
▪ civil union or domestic partnership registration certificates;
▪ bank statements, mortgages, or leases establishing that employees and their domestic
partners or civil union partners have shared financial obligations; and
▪ statements signed by employees certifying that they have entered into civil unions or
domestic partnerships.
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• Qualified Retirement Plans:
 When to recognize?
 Evidence required?
 What changes have to be made
 Amendments required by end of 2014
• Health & Welfare Plans:
 Recognize same sex marriage?
 Evidence Required
 What changes will be made?
 Amendments required?
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Courses of Action

Questions?
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• Larry Grudzien
 Phone: 708-717-9638
 Email: larry@larrygrudzien.com
 Website: www.larrygrudzien.com
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Contact Information

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