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.


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.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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