Resources: online
Administrative Guidance for Defense of Marriage Act (DOMA)
The following table identifies areas that employers should review as they prepare for administrative guidance.
| Examples of Impacted Plans or Benefits | Explanation | |
| Retirement Plans | Beneficiary Designations Qualified Domestic Relations Orders Hardship Distributions Required Minimum Distributions Loans Qualified Joint and Survivor Annuity Qualified Pre-Retirement Survivor Annuity In-Service Distributions |
Many qualified retirement plans and health and welfare plans rely on the federal definition of spouse.
Plan sponsors should review plans to determine when a "spouse" is required to consent to an action (designation of another as beneficiary), or is entitled to certain benefits (Qualified Joint and Survivor Annuity or health insurance coverage) and if that definition is based on state law or the federal DOMA definition. |
| Health and Welfare Plans | Insured and Self-Insured Health Plans Cafeteria Plans Life Insurance Plans Flexible Spending Accounts Health Reimbursement Accounts Health Savings Accounts |
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| Executive Compensation Plans |
Executive Employment Agreements |
Executive compensation arrangements may use the term “spouse.”
Employers should review any provisions that permit or condition actions based on marital status, including changes in that status (i.e. death of a spouse is a permissible payment timing exception under Code Section 409A). |
| Imputed Earnings on Benefits Employment Tax |
FICA Payments
Form W-2 – Available Withholding Table |
Many employers voluntarily provided health plan coverage to same-sex partners of employees, which resulted in imputed income to the employee on his or her Form W-2. If the employee is married to the person covered by the plan there might no longer be imputed income for federal income tax purposes.
Employers and employees may be entitled to federal refunds for past years and different FICA obligations going forward. |
| Family and Medical Leave Act | FMLA Leave Policy | In certain situations, a same-sex spouse may qualify as a “spouse” for purposes of taking FMLA leave. |
| COBRA Benefits | COBRA notice and coverage obligations State law mini-COBRA rights |
“Spouse” is a class of beneficiary who must be offered COBRA continuation coverage. |
| HIPAA Requirements | Spousal enrollment rights | Does this new recognition of same-sex marriage create a qualifying event for health plan enrollment? |
| Securities Laws | Section 16 Beneficial Ownership Rule 144 Related-Party Disclosures Form S-8 Registration Obligations Accredited Investor Definition Qualified Purchasers and Qualified Clients |
For more information, read "After the Rainbow: Impact of the DOMA Ruling on Public Companies," a blog post by Maslon attorney Paul Chestovich for ONSecurities.com. |