Re-examine definition of 'spouse' in all plan documents

Following the U.S. Supreme Court’s ruling in United States v. Windsor, and subsequent guidance from the federal government, legal advisers recommend that employers sift through their benefit plans and employee policies to ensure compliance for 2015.

The Windsor decision essentially struck down the Defense of Marriage Act, a federal law that defined marriage as only between individuals of the opposite sex. Bob Ellerbrock, a counsel at corporate law firm Balch & Bingham, recommends that employers and benefit decision-makers take a look at their definition of the term “spouse” in all plan documents.

“Everything really hinges on that definition,” Ellerbrock says, while noting that this should be the first step in any benefit plan review or amendment process. For retirement plans, Ellerbrock says that plan sponsors should also make sure participants opt for correct spousal consent on beneficiary forms.

See also: Post-Windsor: Does your plan need a year-end amendment?

Last summer, the Internal Revenue Service’s Revenue Ruling 2013-17, used for federal tax purposes, defined the terms “spouse,” “husband,” and “wife.” The IRS notes that “‘husband,’ and ‘wife’ include an individual married to a person of the same sex, if the individuals are lawfully married under state law, and whether, for those same purposes, the term ‘marriage’ includes such a marriage between individuals of the same sex.” And in April, Notice 2014-19 offered some additional Windsor guidance on the impact on tax-qualified retirement plans. The Department of Labor followed in June with a new proposal to extend the reach of the FMLA to all eligible employees in same-sex marriages.  

When it comes to FMLA, HIPAA and COBRA purposes, Ellerbrock explains that minor tweaks can be an easy fix for employers. It’s very simple administrative change, he says, noting “a spouse is a spouse for federal purposes.”

See also: Health care benefits in 2015: What employers need to know

As many health and benefit plans are now experiencing open enrollment, he says most employers should have this change under control. And new data from the Human Rights Campaign, the largest civil rights organization working to achieve equality for lesbian, gay, bisexual and transgender Americans, agrees. Approximately 93% of the 781 mid-sized and large employers polled provide medical and comprehensive health benefits; this includes dental, vision, dependent medical and COBRA-equivalent coverage. The Corporate Equality Index 2015, a rating of American workplaces on LGBT equality, also finds that 71% provide partner health insurance to both same- and opposite-sex employee partners.

In retirement benefits, businesses note that they have modified their retirement plan distribution options. HRC finds that 90% of employers with rollover provisions opted to extend these benefits to same-sex partners, and 97% offer hardship options, a plan withdrawal, for any designated beneficiary.

See also: DOL proposes FMLA expansion for same-sex marriage employees