Well, our title is a bit provocative in that not all of your “post-DOMA” questions have yet been answered by the IRS (who defines “spouse” for purposes of employee benefits under ERISA as well as taxation under the Internal Revenue Code) or the Department of Labor (DOL) for purposes of administering leave under the federal Family and Medical Leave Act (FMLA).
So, here’s what we do know so far.
Regarding the administration of employee benefits governed by ERISA --
The IRS has not yet defined “spouse.” This means that, for now, employers are free to define this term under their employee benefit plans however they choose just as they always have been. One trend we are beginning to see “post- DOMA” is that many municipal governments are choosing to extend employee benefits to same-sex couples (even in states where same-sex marriage is not recognized). Many private employers who have employees in a mix of states which both do and do not recognize same-sex marriage already had chosen to provide such benefits for ease of administration even before Section 3 of the DOMA was struck by the Supreme Court in June of this year.
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