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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
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
Executive Compensation Plans

Executive Employment Agreements
Tax Equalization/Gross-Up Agreements
Deferred Compensation Plans
Supplemental Executive Retirement Plans
Stock Incentive Plans

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


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