Implications Of Same-Sex Marriage Decisions By U.S. Supreme Court For Employer-Sponsored Health And Welfare Benefit Plans

by Perkins Coie
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Two controversial cases involving same-sex marriage were decided on June 26, 2013 by the United States Supreme Court.  The first is United States v. Windsor and the second is Hollingsworth v. Perry

United States v. Windsor

In Windsor, the Court held that § 3 of the Defense of Marriage Act (DOMA), enacted in 1996, violated “basic due process and equal protection principles applicable to the Federal Government” pursuant to the Fifth Amendment to the United States Constitution.

Background

The plaintiff in Windsor is Edith Windsor who was lawfully married to her same-sex partner, Thea Spyer, in Ontario, Canada in 2007.  Spyer died in 2009 and left her entire estate to Windsor.  Although New York State, where the couple resided, did not permit same-sex marriage at that time, it recognized valid same-sex marriages from other jurisdictions.  Applying DOMA, the IRS determined that Windsor was not a “surviving spouse,” despite her marriage that was valid under state law, for purposes of the marital exemption from the federal estate tax and refused to refund $363,053 that she paid in estate taxes.  Windsor sued in federal district court contending that DOMA violated the Fifth Amendment to the U.S. Constitution. 

The DOMA provision at issue was § 3, which amended the Dictionary Act in Title 1, § 7, of the U.S. Code and states, “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.”  Notably, the case does not address DOMA § 2, which, in the Court’s words, “allows States to refuse to recognize same-sex marriages performed under the laws of other States.” 

The Court explained, referring to Loving v. Virginia and citing Sosna v. Iowa, that, “State laws defining and regulating marriage . . . must respect the constitutional rights of persons, . . . but, subject to those guarantees, ‘regulation of domestic relations’ is ‘an area that has long been regarded as a virtually exclusive province of the States.’” 

Although “limited federal laws that regulate the meaning of marriage in order to further federal policy” are constitutional, DOMA, with its expansive application to “over 1,000 federal statutes and the whole realm of federal regulations,” conflicts with “this history and tradition of reliance on state law to define marriage.”  The Court stated that, “by writ[ing] inequality into the entire United States Code,” the “principal effect” of DOMA “is to identify a subset of state-sanctioned marriages and make them unequal.”  The Court further stated that DOMA “imposes a disability on [same-sex married couples] by refusing to acknowledge a status the State finds to be dignified and proper.”  As a result, it found DOMA § 3 to be invalid because “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”  The Court affirmed the decision of the U.S. Court of Appeals for the Second Circuit, which had previously affirmed the District Court’s decision and order requiring the IRS to refund the estate taxes to Windsor with interest.

Impact of the Decision

Although the impact of this case is far-reaching, a number of questions remain.  The Court did not reach the conclusion that a state’s denial of marriage to same-sex couples violates the U.S. Constitution, nor did it reach the merits of § 2 of DOMA (as described earlier).  As a result, same-sex married couples will potentially be treated differently among the states.  Because certain federal agencies rely on where a couple’s marriage took place and others rely on the couple’s place of residence to determine marital status, it remains unclear exactly how employee benefit plans will determine the marital status of an employee who was legally married to a same-sex spouse in a state that recognizes such marriages but then moves to another state where such marriages are invalid.  This has the potential to create administrative burdens for employers with employees in multiple states as they try to comply with the federal income tax imputation rules under a patchwork of differing state marriage laws.

Hollingsworth v. Perry

Hollingsworth arose after California voters, by means of a ballot initiative known as Proposition 8, amended the state constitution to limit marriage to opposite-sex couples.  Proposition 8 was put to the voters after the California Supreme Court had held that limiting marriage to opposite-sex couples violated the state constitution. When the validity of Proposition 8 was challenged in federal court, California officials refused to defend it, so the U.S. District Court allowed the official proponents of Proposition 8 to intervene to defend the measure.  

Background

After a trial, the District Court held Proposition 8 unconstitutional under the U.S. Constitution and ordered state officials not to enforce it.  The state officials did not appeal but the proponents of Proposition 8 were allowed to appeal to the U.S. Court of Appeals for the Ninth Circuit, which upheld the District Court's decision.  The U.S. Supreme Court took a different view of whether the proponents of Proposition 8 were proper parties to challenge the District Court's ruling, and held that the Proposition 8 proponents did not have standing to bring the appeal under Article III of the U.S. Constitution.  The case was vacated and remanded, meaning that the District Court's opinion stands.  The California attorney general has already ordered local jurisdictions to issue marriage licenses to same-sex couples.

Impact of the Decision

Because the Court resolved the case on the issue of Article III standing, it did not reach the merits of the case.  As a result, the issue of whether a state violates the equal protection and due process clauses of the Fourteenth Amendment to the U.S. Constitution when it allows opposite-sex couples to marry but not same-sex couples remains undecided.  This limits the impact that Hollingsworth will have outside of the Ninth Circuit. 

Employee Benefit Plan Document Issues

One of the most important tasks for sponsors of employee benefit plans after the Windsor decision will be to review plan documents and determine whether the definitions accurately reflect the sponsor's intent. 

Although under Windsor a same-sex spouse must be recognized as a spouse for purposes of federal law, that decision does not automatically change the meaning of terms in plan documents—it merely changes the effect, under federal law, of the terms.  For example, if a plan defines a spouse as a person of the opposite-sex who is legally married to an eligible employee, Windsor would have no effect on that definition and a same-sex spouse would not be a spouse under that plan. 

On the other hand, if the plan defines a spouse as a person to whom an eligible employee is legally married, then the same-sex spouse to whom an eligible employee is legally married under state law would be a spouse under the plan.  And if a plan does not include any definition of spouse, there may be a need for the plan fiduciaries to adopt an interpretation of that term that is not arbitrary and is applied consistently. 

To avoid challenges, however, the better approach is to define the term in the plan documents, by amendment if necessary, to reflect the sponsor's intent.  Similar issues may arise as to whether the child of a same-sex spouse is an eligible dependent under the plan terms.

Employee Communications

The exact scope of plan sponsor obligations, and any time limits, may depend on guidance from federal agencies, such as the IRS.  Although some guidance on issues such as imputation of income and any retroactive refunds may be released fairly soon, there will continue to be unanswered questions for some time. 

While awaiting guidance, it is advisable for plan sponsors to communicate the sponsors' intentions regarding eligibility.  For example, many employers already extend plan eligibility to same-sex spouses and domestic partners, and will continue to do so, with changes that are permissible under the Windsor decision, such as no longer being required to impute income to an employee who covers a legal same-sex spouse.

With respect to documenting marital status, most employers require only a signed certification from the employee while others require a copy of the marriage certificate.  Plan sponsors have some flexibility in how much documentation to require to prove eligibility.  However, discrimination issues might arise if a plan sponsor should require more or different documentation of same-sex marriages as for opposite-sex marriages.

Effect on Non-Spouse Same-Sex Partners

The Windsor decision considered only same-sex spouses whose marriages were recognized in the state in which they lived.  Its effect on same-sex partners who were not married in a jurisdiction that recognizes same-sex marriage, or who were married in a jurisdiction that does recognize same-sex marriage but now live in a jurisdiction that does not, is unknown.  Similarly, its effect on same-sex partners who are registered as domestic partners or civil-union partners in jurisdictions that recognize those relationships is unknown. 

Further guidance from the federal agencies might answer some of these questions, but for the moment, all we are sure of is that a same-sex couple who were legally married in a jurisdiction that recognizes same-sex marriage, and who reside in a jurisdiction that recognizes that marriage as legal, are spouses for purposes of federal law.

Healthcare Coverage

In general, both the premiums paid for healthcare coverage and the benefits provided to employees and their spouses under such coverage are tax free under the Internal Revenue Code.  Under DOMA, a same-sex spouse was not recognized for these purposes, however.  If a same-sex spouse did not qualify as a tax dependent under Code § 105(b), then in order for the health- care benefits to be provided on a tax-free basis, the premiums paid for such benefits must have been included in the gross income of the employee.  This was accomplished by requiring the premiums to be paid on an after-tax basis by the employee, or to the extent the employer paid part or all of the premiums, imputing the value of the premiums paid by the employer to the employee. 

With the change effected by Windsor, same-sex spouses would generally be recognized for these purposes and employers no longer need to require employees to pay for premiums for their same-sex spouses on an after-tax basis, or to impute income to such employees to the extent the premiums are paid by the employer.

Because the effect on same-sex spouses who were married in a jurisdiction that recognizes same-sex marriage but now live in a jurisdiction that does not is unknown, complexities remain for employers with employees in multiple states, including both those that recognize same-sex marriages and those that do not. 

COBRA and HIPAA

Both COBRA and HIPAA include language regarding spouses.  For example, under COBRA a spouse or a former spouse is sometimes eligible to elect continuation coverage.  Under DOMA, a same-sex spouse was not recognized as a spouse eligible to elect continuation coverage.  Similarly, under HIPAA, marriage is usually a special enrollment opportunity, but a same-sex marriage would not have been recognized under DOMA.  Now, under Windsor, a same-sex spouse might be eligible to elect continuation coverage, and marriage to a same-sex spouse might trigger a special enrollment opportunity.

Insured Health Plans and Self-Funded Health Plans: Important Differences

Health plan sponsors will still need to keep in mind the differences between a health plan that is insured and one that is self-funded.  The carrier that insures an insured health plan is subject to state insurance law, and even when it sells coverage to an ERISA health plan, the carrier must comply with state insurance law.  Therefore, if the state insurance law requires coverage to be offered to domestic partners, regardless of whether they are legally married, or to same-sex spouses, the ERISA plan will only be able to purchase coverage that includes domestic partner or same-sex spousal coverage.

On the other hand, the sponsor of a self-funded health plan is free to design the plan's eligibility provisions as the sponsor wishes, and may include or exclude spouses (same-sex or opposite-sex) or domestic partners (again, same-sex or opposite-sex).  But federal law will still be important for both insured and self-funded plans for many purposes—for example, the tax effects of such coverage and the implications of HIPAA and COBRA.

Health FSAs, HRAs, Dependent Care FSAs, and HSAs

In general, a Health Flexible Spending Arrangement (Health FSA) and a Health Reimbursement Arrangement (HRA) may be used to reimburse qualified medical expenses for the eligible employee and the employee's spouse and dependents on a pre-tax basis.  Under DOMA, a same-sex spouse was not recognized as a spouse, but under Windsor many same-sex spouses are recognized, and the qualified medical expenses of those same-sex spouses will be reimbursable from a Health FSA or an HRA without imputation of income.

Dependent Care Flexible Spending Arrangements (DC FSA) permit use of pre-tax contributions to pay for the care of certain dependents, including spouses, under certain circumstances.  Under DOMA, a same-sex spouse was not recognized as a spouse, but under Windsor many same-sex spouses are recognized and their care will be reimbursable without imputation of income, if the other requirements of the dependent care rules are met.

Health Savings Accounts (HSAs) are not usually employee benefit plans subject to ERISA, but the underlying high-deductible health plans (HDHPs) with which the HSAs are paired are often subject to ERISA.  Employers need to be aware of the impact of Windsor on same-sex spouses who have high-deductible health plans and HSAs. 

First, the limit on the amount that an individual may contribute to an HSA depends on whether that individual has self-only coverage or family coverage (i.e., anything other than self-only) under the HDHP.  For 2013, the HSA contributions, by employer and employee combined, for an individual with self-only coverage may not exceed $3,250; for an individual with family coverage, the figure is $6,450. A catch-up contribution of up to $1,000 is permitted if the individual is 55 or older. 

For married couples, the HSA contribution limit is a joint limit, divided equally between the two spouses unless they agree on a different division.  Under DOMA, a same-sex couple was not recognized as married and the joint limit did not apply.  Now, under Windsor, many same-sex married couples are recognized as spouses and the joint limit will apply.

Cafeteria Plan Issues

In general, cafeteria plan elections may be made only once each year and any changes must be based on one of the several exceptions recognized by the IRS.  Many of those exceptions relate to changes in family status, including acquisition or loss of a dependent, and the HIPAA special enrollment opportunities.  With the recognition of many same-sex marriages under Windsor, more individuals are likely to meet the requirements for cafeteria plan election changes.  In addition, plan sponsors are likely to receive, or have already received, inquiries from employees who would like to change cafeteria plan elections immediately to cover same-sex spouses.  As with all of the many issues raised by Windsor, it is advisable for plan sponsors to await guidance from the federal agencies before permitting changes.

What Employers Should Do Now

Now is the time for every plan sponsor to:

  • review plan documents to ensure that any definitions of “spouse” accurately reflect the plan sponsor’s intent regarding eligibility for benefits and that such definitions are consistent across plans,
  • review and, if needed, revise policies and procedures affected, such as to whom COBRA notices must be sent, for consistency with the change in the law,
  • work with the payroll department to identify which employees who cover their same-sex spouses will no longer need to have income imputed for the value of the spouse's coverage, and
  • communicate with any third-party administrators to ensure they will be able to administer any plan changes made by the employer.

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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