What to do While Awaiting Post-DOMA Guidance from the Government

Wedding Bands

The U.S. Supreme Court recently ruled that § 3 of the Defense of Marriage Act (DOMA) was unconstitutional under the Fifth Amendment of the United States Constitution.

What DOMA Was

Section 3 of DOMA defined marriage for all federal law purposes as a union between one man and one woman; the term “spouse” referred only to a person of the opposite sex who is a husband or a wife. Under the law, the federal government did not recognize same-sex marriages for any legal purpose. Individuals in same-sex marriages were, therefore, barred from enjoying those federal marital benefits afforded to individuals in opposite-sex marriages. These benefits include, for example, receiving employer-sponsored health benefits on a tax-free basis and the right to continue health coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA).

The Ruling’s Effect on Employer-Sponsored Plans

HCP Alert: Supreme Court Rules on Same-Sex Marriage and DOMA: Still Waiting for Guidance

For more detail about the Supreme Court ruling and its impact on employer-sponsored plans, read our HCP Alert: Supreme Court Rules on Same-Sex Marriage and DOMA: Still Waiting for Guidance

The ruling’s effect on the Internal Revenue Code (IRC) and the Employee Retirement Income Security Act of 1974 (ERISA) will have a significant impact on employers and employer-sponsored plans. Federal laws, such as the IRC, ERISA and COBRA, use the terms “spouse” and “marriage” to define and explain who is specifically entitled to the rights and benefits granted under those laws. With the Court’s ruling that DOMA’s definition of marriage is unconstitutional, these terms are no longer limited to opposite-sex spouses.

Unfortunately, the Court’s ruling does not answer the many questions that employers have, particularly when it comes to determining who exactly is a same-sex spouse and therefore entitled to federal benefits. Any changes employers make without having this guidance are likely to be over- or under-inclusive, and will need to be repeated or, worse, corrected after the fact. An employer also runs considerable risk if it guesses wrong.

What to do

While many experts have asserted that employers must (or must not) take various actions immediately, it appears that employers may be best served by waiting for guidance from the federal agencies that enforce the laws affected by DOMA.

While we wait for agency guidance on the many issues raised by the Supreme Court’s ruling on DOMA, it is important for employers to take the time to study what these changes could mean for them and their benefit plans. Employers should:

  • Know what their plan currently provides and how they have interpreted and applied those provisions in the past.
  • Have a clear idea as to whom they wish to cover under their benefit plans and analyze their current benefit eligibility to determine if the terms of the plan are in agreement with that decision.
  • Wait for guidance.


Maureen E. Gammon

Maureen E. Gammon

Guest blogger Maureen E. Gammon is an employee benefits attorney–Assistant Vice President within Willis’ National Legal & Research Group and is a frequent contributor to Willis publications. She has been with Willis since 2005. She received her J.D. from the University of Pittsburgh School of Law in Pittsburgh, Pennsylvania.

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