In a landmark ruling, United States v. Windsor, the Supreme Court struck down a major provision of the Defense of Marriage Act (“DOMA”).  Since its enactment in 1996, DOMA defined “marriage” to mean “only a union between one man and one woman as a husband and wife” and “spouse” to refer “only to a person of the opposite sex who is a husband or a wife,” which, by their terms, excluded marriages of same-sex couples.  These definitions were applicable to all federal statutes, regulations, rulings and orders, including the Internal Revenue Code (the “Code”) and the Employee Retirement Income Security Act (“ERISA”).

Since the enactment of DOMA, several states adopted laws permitting marriage between same-sex couples.  The Supreme Court ruled in Windsor that the exclusion of married same-sex couples in the definitions of marriage and spouse set forth in DOMA violates the equal protection rights of such couples under the U.S. Constitution.  The Supreme Court’s decision means that, for purposes of all federal laws, legally married same-sex couples, as determined by applicable state law, must be recognized when the terms “married” and “spouse” are used.

The Supreme Court’s ruling does not address the provision of DOMA that permits states to decide whether to recognize marriages of same-sex couples from other jurisdictions, and does not address the issue of whether states must permit same-sex couples to marry or require states to recognize the marriages of such couples legally married in another state.

Other questions remain unanswered pending further guidance from the federal government’s regulatory agencies.  For example, which state’s laws are applicable when the federal government seeks to determine whether a marriage is to be recognized, i.e., the state where the couple was married (“the State of Celebration”) or the state where the couple resides (“the State of Residence”).

Currently, same-sex couples can become legally married in 13 states (1)  and the District of Columbia.  Of the approximately 1,100 statutes that specifically mention “marriage,” “married” or “spouse,” most are either silent on the issue or specify that the applicable state law is the State of Celebration.  Other statutes and regulations, most notably the Social Security Act, specify that an individual’s marital status will be determined based on his or her State of Residence at the time the benefit or obligation applies.

Employee benefit plans are subject to several federal statutes including the Code, ERISA, Health Insurance Portability and Accountability Act (“HIPAA”), Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) and the Family and Medical Leave Act (“FMLA”).  These laws may apply differently to married participants and beneficiaries based on the applicable choice of law rule and the state in which such individuals reside.  Accordingly, employee benefit plan sponsors and administrators should carefully review their plan documents and procedures to determine whether changes need to be made to comply with the changes in applicable federal law.

We offer a full discussion of how the Windsor decision will affect employee benefit plans and steps that employers should take now here.


(1) Currently, Massachusetts, Iowa, Connecticut, Vermont, New Hampshire, New York, Maine, Maryland, Washington, California, Delaware and, beginning August 1, 2013, Minnesota and Rhode Island.