Same-Sex Marriage and Employee Benefit Plans: Legal Considerations [September 12, 2011] [open pdf - 250KB]
"In recent years, the topic of same-sex marriage has engendered intense debate. On July 24, 2011, New York became the sixth and largest state to recognize same-sex marriage. However, the majority of states have statutes or constitutional amendments limiting marriage to one man and one woman, and pursuant to the Defense of Marriage Act (DOMA), federal law does not recognize same-sex marriage. These restrictions have been subject to a number of challenges on constitutional grounds. In light of this evolving legal landscape, discussion has centered around the impact that same-sex marriages have on the provision of federally regulated private-sector employee benefit plans, including retirement and health plans, as these plans afford certain benefits and other protections to spouses of plan participants. Because of DOMA, these plans may not be required to recognize same-sex spouses, even if the spouses are legally married under state law. However, in various instances, plans may still voluntarily extend to same-sex couples the benefits and protections afforded to opposite-sex couples. This report provides background on federal regulation of employee benefit plans, and addresses some of the ways in which DOMA affects private-sector employment-based retirement and health benefits under the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (IRC). The report also addresses recent legal developments with respect to the legal challenges to DOMA, as well as federal legislation that would affect the provision of these employee benefits to same-sex spouses."
CRS Report for Congress, R41998