On May 15, 2008, the California Supreme Court held that same-sex couples have the same right to be married as opposite-sex couples under the California Constitution. Same-sex marriages began on June 15, 2008.[1] In addition, Massachusetts and Connecticut perform same-sex marriages, and the State of New York recognizes marriages between same-sex couples that have taken place elsewhere. The remaining states are divided between those with laws prohibiting the recognition of same-sex marriages performed in other states, and those which may recognize same-sex marriages performed in other states. Although the California Supreme Court decision is groundbreaking in many ways, existing California law provided for equality for same-sex couples in many of the same areas under domestic partnership laws. The California decision does not require that employers offer any particular benefits; it does, however, due to its conflict with the federal Defense of Marriage Act (?DOMA?), require employers to consider the definitions of ?spouse? and similar terms in their employee benefit plans and clarify the definitions to avoid fiduciary liability and IRS disqualification issues.

This article discusses some of the challenges in the arena of employee benefits under ERISA[2] and the Internal Revenue Code. This article focuses on California marriages but is equally applicable to Massachusetts and Connecticut unions, as well as to employers in any jurisdictions that employ individuals who have been married elsewhere.

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