Q&A With Bill Rohrer And Equally Wed Magazine Expert Answers: How DOMA Will Impact Filing For Taxes

by Carlton Fields

Originally Published in Equally Wed - June 26, 2013.

Today the U.S. Supreme Court declared unconstitutional the Defense of Marriage of Act of 1996 in the Windsor v. United States case, which blocked federal benefits to same-sex couples. EquallyWed.com spoke with Bill Rohrer, a tax lawyer and CPA at the law firm Carlton Fields, to get answers to our most pressing questions.

What are the tax implications of this decision for employers and employees? For example: currently, benefits coverage of employees’ same-sex spouses are treated differently for federal tax purposes than opposite-sex spouses. Will this decision result in tax refunds for those previously withheld taxes? If so, what actions do employers need to take? Other tax implications?

The tax implications are various. There are more than 1,000 federal benefits of marriage that same-sex couples will now be entitled to. Several of these benefits are tax benefits and are elaborated on more fully in the answers below.

From a federal perspective, the tax benefits are now identical for both opposite-sex and same-sex couples.

The Supreme Court’s opinions will result in refunds of previously withheld taxes in certain instances. Employers can effectively file for a refund (or an adjustment) on their portion of payroll taxes withheld with respect to for same-sex couples, provided such couples were married as of 2010 or later (i.e., the “open” tax years). For those same-sex couples who were married prior to 2010, the three-year statute of limitations prohibits the filing for a refund unless the employers filed a protective claim for a refund before the statute expired. Like employers, employees may also file for a refund of previously withheld taxes provided they file within the statute of limitations or they filed a protective claim for a refund before the statute expired.

There are other taxes such as estate and gift taxes for transfer between same-sex spouses that are also potentially refundable.

What are the implications of this decision for healthcare benefits for employers and employees? (Example: implications for health coverage for employees' same-sex spouses and children of employees' same-sex spouses, i.e. "step children"). Other implications?

Under prior law, employees who received health insurance from their employers and who wanted to cover their same-sex spouse under such insurance plan could only make contributions to the plan on a post-tax basis unless they could establish that their spouse was their dependent. Employees married to an opposite-sex spouse could make such contributions on a pre-tax basis. Under United States v. Windsor, employees married to same-sex spouses now may make contributions to health insurance plans on a pre-tax basis like their opposite sex counterparts. Additionally, same-sex spouses with children will now be covered under the plans of the non-biological, adoptive parent of such children.

What are the implications of this decision for retirement benefit plans for employers and employees? Does it have any implications under ERISA?

Employers who are currently providing benefits to former employees under 401(k) or other tax-deferred plans now must adjust such policies to allow same-sex spouses to receive such benefits upon the death of the former employee unless the same sex spouse waives such benefits. Also, the survivor of a same sex couple is entitled to social security benefits.

Are there implications for employers stemming from other federal laws such as FMLA or employee visas/immigration laws?
Yes, employees who are married to a same-sex spouse will now be able to sponsor such spouse on visas and be able to obtain a leave of absence under the FMLA for same reasons as opposite sex couples.

What other issues should employers be considering in relation to this decision? Any additional comments welcome.

It is important to note that United States v. Windsor only overturned Section 3 of DOMA, which defines marriage as between a man and a woman. Section 2 of DOMA, which allows states that do not recognize same-sex marriages to refuse to recognize same-sex marriages performed outside of said state, is still valid law. Therefore, employers may have to make different determinations for federal laws/benefits vs. state laws/benefits in states, such as Florida, which do not recognize same-sex marriages performed outside of the state.

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.

© Carlton Fields | Attorney Advertising

Written by:

Carlton Fields

Carlton Fields on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.