A major reason that employee benefits, such as employer- provided healthcare and retirement plans, exist is that they provide a tax-advantaged way for an employer to provide additional compensation to an employee, her spouse, and their dependents. The Defense of Marriage Act (“DOMA”) created a system whereby legally married same- sex couples were not able to enjoy the tax benefits available to legally married opposite-sex couples. Recent court decisions and federal guidance have radically changed this regime; however, there are still many open questions and areas of uncertainty in how these changes will affect benefit plans. In this article, I will walk through the known effects and try to untangle some of the likely effects of this swiftly changing landscape.

BACKGROUND -

In the June 2013 decision U.S. v. Windsor, the Supreme Court struck down Section 3 of DOMA, which defined “marriage” as between one man and one woman and “spouse” as the opposite-sex partner in a marriage. Prior to this decision, federal recognition of same-sex marriage was unlawful, even if such marriages were legal under state law.