Rules On. opposite sex are violates the. guidance, practices. impact on impact of. Louis T. Mazawey. and Mark C. Nielsen. below:

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1 June 26, 2013 Authors: Elizabeth T. Dold, Louis T. Mazawey and Mark C. Nielsen If you have questions, please contact your regular Groom attorney or any of the Health and Welfare attorneys listed below: Jon W. Breyfoglee (202) Elizabeth T. Dold (202) Thomas F. Fitzgerald (202) Christine L. Keller (202) Tamara S. Killion (202) Louis T. Mazawey (202) Mark C. Nielsen (202) William F. Sweetnam, Jr. (202) Christy A. Tinnes (202) Vivian Hunter Turner (202) Brigen L. Winters (202) Supreme Court Rules On Same Sex Marriage DOMA Is Unconstitutional: The Implications for Plan Sponsors Today, the U.S. Supreme Court decided two landmark cases involving same sex marriage. In the first case, U.S. v. Windsor, the court ruled that Section 3 of the federal Defense of Marriage Act ( DOMA ) which provides that only persons of the opposite sex are recognized as spouses and married for purposess of federal law violates the Fifth Amendment s guarantee of equal protection as applied to persons of the same sex who are legally married under the laws of their state. The result is that Section 3 of DOMA has been struck down, by a vote of 5 4 (in a decision written by Justice Kennedy). In the second case, Hollingsworth v. Perry, the Courtt ruled that it lacked jurisdiction to hear a challengee to California s Proposition 8, which banned same sex marriage in that state. Accordingly, the Court did not rule on whether California (or any other state) may prohibit same sex marriage. The result is that an appellate court ruling which found Proposition 8 unconstitutional has been vacated (i.e., is without effect), but the trial court s similar ruling as to Proposition 8 which is binding only on the parties to that case is still in effect. As a practical matter, though, California officials may interpret the Court s decision as a signal that California can begin issuing marriage licenses to same sex couples. We expect future guidance, and possibly litigation, overr the issue. The Court s DOMA decision has immediate implications for employers that sponsor retirement, fringe benefit, and health care plans, as well as employers payroll systems and practices. Below is a high level overview of the Court's rulings and the DOMA decision s impact on plan sponsors, which is followed by a chart that briefly summarizes the potential impact of the DOMA decision. We caution that it is critical for plan sponsors to carefully study the Court s DOMA decision and to follow announcements from federal and state regulators as to how they are interpreting the decision and any regulatory reaction thereto including plan amendments that may be necessary to maintain taxx qualified status, and whether qualified retirement plans must recognize same sex marriages retroactively (thus enabling such spouses to claim plan benefits for periods in the past). Health plans will no longer need to impute the value of coverage for same sex spouses intoo an employee s income. The decision does not address whether healthh plan provisions that limit coverage only to spouses of the opposite legislativee responses, so stakeholders should stay tuned for further developments and sex may continue to do so. Additionally, the Court ss decisions could invite possible changes in this area.

2 I. Background DOMA: DOMA was enacted into law in Section 2 of DOMA the constitutionality of which was not before the Supreme Court allows states to decline to recognize the validity of same sex marriages that were legally performed 1 in other states. Currently, 12 states and the District of Columbia allow couples of the same sex to marry. Additionally, a number of states provide some or equivalent spousal protections through civil union laws, and/or recognize same sex marriages thatt are performed in other states, and it is likely that other states may recognize same sex marriages or civil union equivalents in the future 2 At issue before the Supreme Court was Section 3 of DOMA, which defines marriage, for purposes of alll federal laws and regulations, as the legal union between one man and one woman. Section 3 further provides that the term spouse, when used in a federal law or regulation, only referss to a legally married person of the opposite sex. DOMA s definitions of marriage and spouse impact more than 1,300 federal laws, including the Internal Revenue Code ( IRC ) and the Employee Retirement Income Security Act of 1974 ( ERISA ), which regulate employer sponsored retirement and health and welfare benefit plans. Impact on Benefits: Because DOMA limits the definition of marriage and spouse under the IRC and ERISA to only opposite sex couples, same sex couples that are legally married under the laws of their respective states are subject to differential tax treatment of spousal retirement and health care benefits. For example: Survivor Annuities Under Tax Qualified Plans: Under the IRC and ERISA, certain tax qualified plans are required to provide survivor annuities, where the spouse has a rightt to survivor benefits upon the participant s death (unless previously waived by the participant and spouse). But given that survivor annuities are created (and required) by federal statutes, DOMA prevents a plan administrator from recognizingg a participant s same sex spouse under state law as the spouse to which the survivor annuity applies. Instead, federal rules require the plan to treat the participant as unmarried regardless of the validity of the marriage under state law. (A plan may allow the participant to designate the same sex spouse as a beneficiary, but this requires the plan sponsor to amend the plan to so permit). Spousal protection under IRC Section 401(k) plans generally requiring spousal consent to any beneficiary of the account balance other than the spouse is also restricted to opposite sex couples. Health Care Benefits: Although an employer (other than the federal government) may design its group health plan to permit coverage of a same sex spouse, there is no requirement that plan sponsors do so. Moreover, even if a plan sponsor permits coverage off a same sex spouse, there are adverse tax consequences to employees who elect to cover their same sex spouses. Specifically, because the value of medical coverage received under an employer s health plan is excludable from federal income tax only for benefits provided to the participant and the participant s spouse and dependents, health benefits provided to a same sex spouse are generally subject to federal income tax because of DOMA. In contrast, an 1 Currently, licenses for same sex marriages are issued in Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington and the District of Columbia. Rhode Island, Delaware and Minnesota passed same sex marriage legislation in Delaware s law takes effect on July 1, 2013; Rhode Island and Minnesota s laws take effect on August 1, States that provide some, or equivalent, spousal rights to same sex couples include California, Colorado, Hawaii, Illinois, Nevada, New Jersey, New Mexico, Oregon, and Wisconsin. The impact of a state s civil unionss laws are beyond the scope of this article. 2

3 employee that elects to cover his or her spouse of thee opposite sex will not have the value of spousal coverage imputed to the employee s income. The differential treatment of opposite sex and same sex married couples imposes costs on employers that sponsor retirement and health and welfaree plans, as reflected in an amicus ( friend of the court ) brief that was filed with the Supreme Court by a coalition of 278 employers, employee organizations, associations and municipalities. Essentially, DOMA requires employers to maintain two sets of books with respect to employees with same sex spouses, by treating such employees (1) as single for purposes of federal tax withholding, payroll taxes, and workplace benefits that turn on marital status, but (2) as married for all other purposes under state law. The Cases: The Supreme Court agreed to consider the constitutionality of Section 3 of DOMA by hearing arguments in a lawsuit brought by Edie Windsor against the U.S. Government. Ms. Windsor married her same sex partner, Thea Spyer, in Canada in 2007, and the state in which they lived (New York) recognized the validity of their marriage. Ms. Spyer died in 2010, leaving her assets to Ms. Windsor. Under federal tax law, a spouse who dies can generally leave her assets, including the family home, to the other spouse without incurring estate taxes. Because of DOMA, however, the federal government treated Ms. Windsor as if she was unmarried, thus requiring her to pay estate taxes in excess of $350,000, which she would not have had to pay if her deceased spouse was of the opposite sex. Ms. Windsor sued the federal government to recoup the estate taxes she paid, asserting that Section 3 of DOMA violated the Fifth Amendment s guarantee of equal protection as applied to a person of the same sex who is legally married under the laws of his or her state. The second case involves Proposition 8, a 2008 California ballot initiative, which amended the California state constitution to provide that only marriages between a man andd a woman would be recognized in California. Proposition 8 overturned an earlier ruling by the California Supreme Court, which held thatt same sex couples in California had a right under the state constitution to marry. Opponents of Proposition 8 i.e., those in support of same sexx marriage sued in federal court, arguing that Proposition 8 discriminated against same sex couples in violation of the U.S. Constitution ss guarantee of equal protection. In Hollingsworth v. Perry, both a federal district court and the Ninth Circuit Court of Appeals ruled that Proposition 8 violated the U.S. Constitution. The Supreme Court agreed to hear the Hollingsworth case to consider whether the Equal Protection Clause of the Fourteenth Amendment prohibited the State of California from defining marriage as the union of a man and a woman. The fundamental question in Hollingsworth is whether the U.S. Constitution prohibits states from limiting the institution of marriage to only couples of the opposite sex. II. The Court's Rulings DOMA: In a 5 4 decision authored by Justice Kennedy (and joined by Justices Ginsburg, Breyer, Sotomayor and Kagan), the Court ruled that section 3 of DOMA is unconstitutional. In its ruling, the Court stated that historically, the federal government had deferred to state law policy decisions with respect to the definition of marriage and domestic relations laws in general. DOMA, however, rejects this long established precept that the incidents, benefits, and obligations of marriage are uniform for married couples within each State, though they may vary from one State to the next. The Court went on to find that DOMA s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage... operates to deprive same sex couples of the benefits and responsibilities that come with the federal recognition of marriage, and impose[s] a disadvantage, a separate status, and so a stigma upon all who enter into same sex marriages made lawful by the unquestioned authority of the States. The purpose of DOMA, the Court found, was to disadvantage same sex [DOMA s] purpose and effect to disparage couples based on an impermissible animus toward such couples, and no legitimate purpose overcomes and 3

4 to injure those whom the State, by its marriage laws, sought too protect in personhood and dignity. Accordingly, the Court found that DOMA violated the liberty protected by the Due Process Clause of the Fifth Amendment. Notably, however, the Court expressly stated that its opinion and holding are limited only to those same sex marriages lawfully performed in states. Same Seban on same sex marriage. The opinion was written by Chief Justice Robertss (and joined by Justices Scalia, Ginsburg, Marriage: By a vote of 5 4, the Court ruled that it lacked jurisdiction to hear the challenge to California s Breyer, and Kagan). By way of background, a federal district court in San Francisco had ruled that Proposition 8 violated the Equal Protection Clause of the 14th Amendment of the U.S. Constitution, and California s governor and attorney general refused to defendd the law on appeal. Supporters of Proposition 8 claimed that they had suffered an injury because of the district court s ruling, and therefore appealed the rulingg to the Ninth Circuit Court of Appeals. The Ninth Circuit found that the supporters of Proposition 8 did have standing, but upheld, on narrower grounds, the lower court s ruling as to the ban on same sex marriage violating the 14th Amendment. The Supreme Court vacated the Ninth Circuit s decision, findingg that supporters of Proposition 8 s ban on same sex marriage lacked standing to challenge the trial court s ruling. Essentially, the Court ruled that the supporters of Proposition 8 did not have any personal stake (such as a cognizable injury) in defending the legitimacy of Proposition 8 in federal court, and thus could not appeal the district court ss decision when state officials refused to do so. As a result of the Supreme Court s decision, the district court s ruling that Proposition 8 is unconstitutional still stands, although as a technical matter, this ruling is only binding on the parties to the case and does not have effect state wide (or across the nation). As a practical matter, though, California officialss may decide to take steps to recognize same sex marriages following the Court s ruling, which may lead to litigation over the validity of any such marriages. III. Key Implications of the Decisions for Plan Sponsors By holding that Section 3 of DOMA is unconstitutional, the Court s decision effectively means that the differential treatment of opposite sex and same sex couples may come to an end, at least in those states that allow or recognize same sex marriages. This is because the terms spouse and marriage as used in federal laws, such as the IRC, ERISA, COBRA, the Family and Medical Leave Act ( FMLA ), as well as the Social Security Act, etc., will no longer be limited solely to opposite sex spouses. Rather, given that DOMA has been ruled unconstitutional, the definition of a spouse or a marriage as used in a qualified retirement plann will likely be determined based on the state in which a plan participant resides. This, in turn, means that for many ERISA covered plans, a spouse may now include a same seplans may also be equired to recognize same sex spouses, which is an issue that the Court s decision didd not answer. spouse residing in a state where such marriages are legal. The next question, though, is whether health Additionally, an areaa of likely future controversy involves employees who were married to same sex partners in states that permitted such marriages, but who now reside in states where such marriages are not recognized. 3 The Court s DOMA ruling means that employers offering retirement and health and welfare benefit plans will need to closely examine their plan documents, payroll systems, and compliance practices to determine if amendments are required to change the definition of a spouse or marriage, and/or to reflect similar treatment of both opposite sex and same sex married couples in those states that permit or recognize same sex marriages. This could require 3 We note that 38 states do not recognize same sex marriage, and nothing in today s decisions require those states to allow or recognize the validity of same sex marriages. Indeed, Section 2 of DOMA which was not at issue before the Supreme Court specifically allows states to refuse to recognize the validity of same sex marriages that were legally performed in other states. 4

5 extensive revision to, among other things, retirement plan documents, health plan documents, COBRA and FMLA policies, and an employer s income tax withholding and employment tax payroll practices. A brief overview of issues involving qualified etirement, fringe, and healthh and welfare plans is set forth below. At a minimum, though, it seems that qualified retirement planss will now be required to recognize same sex spouses in the 12 states (and the District of Columbia) that allow such marriages. We caution, however, that plan sponsors may want to wait for future guidance from federal and state regulators when considering the re design of plans to account for the Court s DOMA ruling. In the meantime, Groom will be pleased to work with you in reviewing plan changes and participant communications that may be requiredd as a result of the DOMA decision. Impact on Qualified Retirement Plans Spousal Protections and Plan Distributions Many qualified retirement plan spousal protection and distribution provisions that impact spouses must now be extended to legal same sex spouses, at least in those states that permit or recognize such marriages. Key provisions that plan sponsors operating in such states must consider include: QJSAs and QOSAs for Surviving Spouses.. Pension plans (including money purchase plans) require that a participant s benefit is paid in the form of a qualified joint and survivor annuity ( QJSA ), 4 whichh for a married participant is an annuity that provides benefits for the lifetime of the participant, and a 50% (or more) survivor benefit for the surviving spouse for hiss or her lifetime. This payment form is mandatory, unless the spouse provides written notarized consent to another form of payment. The plan must also offer a qualified optional survivor annuity, which is typically a 75% survivor benefit to the spouse. Similarly, in a profit sharing plan, if an annuity option is elected, the payment form must be a 50% joint and survivor annuity with the spouse as annuitant, unless the spouse consents to another form of payment. If an annuity is not offered, then in the event of the participant s death, the spouse is to receive the entire plan account, unless the spouse consents to another beneficiary. Beforee Windsor, these annuity benefits were not required to be offered under the plan to same sexx spouses, and for profit sharing plans, the plan did not automatically pay the death benefit to the same sex spouse. QPSA. A same sex spouse will now be automatically entitled to a death benefit upon the employee s death (unless waived). Specifically, pension plans (includingg money purchase plans) require that if the participant dies prior to retirement, the surviving spouse must receive an annuity (a qualified pre retirement survivor s annuity ( QPSA )) for his or her lifetimee equal to 50% of what the participant would have received, unless the spouse elects (under the terms of the plan) another form of payment. Similarly, profit sharing plans that provide an annuity option must now provide the surviving spouse a pre retirement annuity purchased with 50% of the account balance. Previously, this annuity benefit was not required to be offered under the plan to same sex spouses. 4 Notably, for purposes of IRC Section 415 limits, the value of a subsidized QJSA is nott taken into account (which previously the value of the survivor annuity paid to the same sex spouse would havee been taken intoo account). This may assist highly paid employees with same sex may impact the benefits under an excess plan (if spouses from exceeding the Section 415 plan limits (which is currently at $205,000 per year), and accordingly any). 5

6 Eligible Rollover Distributions. A same sex spouse willl now be able to elect to take a plan distribution and roll it over to his or her own IRA or to another qualified plan. Previously, the only option for a same sex spouse was to directly rollover an eligible rollover distribution to an inherited IRA. Hardship Distribution. An employee with a same sex spouse will now be able to receive a hardship distribution due to such spouse s medical, tuition, andd funeral expenses. Specifically, profit sharing plans can permit in service, hardship distribution for expenses related to a spouse s medical, tuition, and funeral expenses. Previously, hardship distributions were only available if the employer offered the right to allow hardship distributions for expenses of a primary beneficiary, and the same sex spouse was designated as such. Minimum Required Distributions. A same sex spouse of a participant that dies prior to commencing benefits will now be able to defer distributions until the participant would have reached age 70 1/2, and their benefits should no longer be subject to incidental death benefit rules that require somewhat more rapid distributions where theree is a differencee of more thann 10 years between the ages of the employee and the beneficiary. Previously, the benefit payments to same sex spouses would need to commence within one year following the year of the participant s death, andd survivor benefits paid would be subject to the incidental death benefit rules. Loans. If a Plan requires spousal consent for a loan (e.g., money purchase pensionn plans), the same sex spouse s consent will be required. Previously, no spousal consent would have been needed for a plan loan. QDROs. A divorcing same sex spouse will now be entitled to a portion of the participant s plan benefits as part of the divorce process by submitting a qualified domestic relations order ( QDRO ). Previously, the QDRO procedures were generally viewed as not available; therefore, same sex ex spouses generally were not entitled to a portion of the participant s plan benefit. Given that DOMA has been declared unconstitutional, a key question is whether its invalidation is retroactive back to 1996 and whether this could mean that same sex spouses previously denied benefits may now seek benefits for past periods. We think it is likely that the IRS will provide guidance on this issue, and we note that IRC Section 7805(b) grants the IRS broad authority to administer the Supreme Court s decision prospectively. In light of the administrative changes, we anticipate that the IRS will issue guidance regarding the properr impact of the decision, the effective date of the change, and the applicable timing of plan amendments to preserve the tax qualified status of the plan, as many plans include DOMA language within the plan document. A similar approach was taken most recently following the Supreme Court s decision in Central Laborers Pension Fund v. T.E. Heinz, where IRS Revenue Procedure limited l the retroactive application of the Supreme Court s June 2004 decision. Impact on Health Care Benefits Even when Section 3 of DOMA was the law of the land, employers were permitted but not required to extend healthh care benefits to the same sex spouses of their employees. But, as noted above, an employee with a same sex spouse was generally subject to additional income tax liability based on the imputed fair market value of such coverage. Now that Section 3 of DOMA has been declared unconstitutional, employers and plan sponsors are free to extend health plan coverage to same sex spouses without having to impute additional income tax to the employee or pay additional payroll taxes. But some employers also face thee question of whether their health plans must extend 6

7 coverage to same sex spouses, notwithstanding plan provisions that currently limit such coverage to spouses of the opposite sex. This is a question that the Court s DOMA decision does not answer. Following the Court s DOMA ruling, employers and other plan sponsors mustt consider a number of changes with respect to health care benefits provided to employees with same sex spouses residing in states where such marriages are permitted or recognized. These include, among other things: No Imputation of Tax on Health Care Benefits: Employers will no longer be required to impute additional income to an employee who covers his or her same sex spouse as a dependent under the employer s health care plan, ncluding for dental and vision benefits. And additional tax withholding to account for such imputed income tax liability will no longer be required. o Note: Employers may still be required to impute income for employees that cover same sex spouses in states that do not permit or recognize such marriages. No Additional Payroll Tax: Employers will no longer be required to pay additional payroll taxes (based on imputed income) for employees who have same sex spouses covered under the employer s health plan. Pre Tax Payment of Premiums: Employees with same sex spouses may now reduce their taxable income by paying, on a pre tax basis, the cost of spousal health care coverage, in the same way that an employee with a spouse of the opposite sex may do so. COBRA Coverage: Same sex spouses who are coveredd as dependents under a group health plan may now be considered qualified beneficiaries eligible for continuation of health care coverage in the event of the spouse s termination of employment, divorce, legal separation, etc. HIPAA Special Enrollment Rights: An employee with a new same sexx spouse may now immediately add his or her spouse to health care coverage, in the same way that an employee with an opposite sex spouse may do so. Additionally, an employee may now add his or her same sex spouse to coverage in special circumstances, such as where the spouse loses coverage under another plan. FSA, HSAs, and HRAs: Qualified medical expenses incurred by the same sex spouse of an employee may now be eligible for tax free reimbursement under an employer s flexible spending arrangement ( FSA ), health reimbursement arrangement ( HRA ), or health savings account ( HSA ). Prior to the DOMA ruling, HRAs could reimburse the expenses of a same sex spouse, but only if the value of coverage was imputed to the employee. Impact on Fringe Benefits A number of tax freee employer provided fringe benefits are limited to employees, spouses, and dependents. Prior to today s DOMA decision, otherwisee tax free benefits provided to same sex spouses were reportable as taxable wages to the employees on a Form W 2, and thus subject to income and employment taxes. Following the DOMA decision, however, these benefits may now be provided tax free with respect to same sex spouses and should no longer result in imputed income. The more common fringe benefits that aree impacted are noted below. 7

8 No Additional Cost Services. This exclusion applies to a service the employer provides to customers in the ordinary line of business in which the employee performs substantial services, and providing it to the employee and a spouse does not result in any substantial additionall costs. Generally, this includes excess capacity services, such as airline, bus, or train tickets; hotel rooms; or telephone services provided free or at a reduced price to employees working in those lines of business. Employee Discounts. This exclusion applies to a price reduction (generally up to 20%) an employer gives an employee on property or services they offer to customers in the ordinary course of a line of business in which the employee performs substantial services. For this purpose, an employeee includes a spouse, and a surviving spouse of an employee (or former employeee who retired or left on disability). Retirement Planning Services. This exclusion applies to the value of any retirement planning advice or informationn an employer provides to its employees and spouses, provided that the employer maintains a qualified etirement plan. The services provided can also include general advice and information on retirement. Gym Facilities. An employee can exclude the value off the use of an on premises gym or other athletic facility the employer operates if substantially all use of the facility during the calendar year is by employees, their spouses, and their dependent children. Use of the employee includes the use by the spouse. Adoption Assistance. The program cannot make moree than 5% of its total payments during the year for shareholders or 5% owners (or their spouses or dependents). Reduced Tuition. An educational organization can provide tuition reduction for certain education expenses for an employee s spouse. Group Life. The cost of group term life insurance payable on the death of the employee s spouse or dependent that does not exceed $2,0000 is a tax free, de minimis fringe benefit. Dependent Care Assistance. The exclusion cannot exceed the lesserr of the earned income of either the employee or employee s spouse. Employee Stock Options. An employee who transfers his or her interest in non statutory stock potions to the employee s former spouse incident to a divorce is nott required to include an amount in gross income upon the transfer. The former spouse, ratherr than the employee, is required to include an amount in gross income when the former spouse exercises the stock option. FMLA The Court s ruling invalidating Section 3 of DOMA could also impact an employer s FMLA policies. Specifically, employees in states recognizing same sex marriages may now be entitled to up to 12 weeks of unpaid leave to care for a same sex spouse who is ill, in the same way that an employee may do so with respect to an opposite sex spouse. 8

9 IV. Next Steps While we wait for guidance from federal and state regulators, employers and other plan sponsors should take the following steps: Obtain Same Sex Marriage Information To the extent that the company does not currently gather information aboutt employees with same sex spouses (e.g., same seobtained, and the existing domestic partner information collection and recordkeeping processes should be modified marriages and domestic partners may all be processed and coded the same), this information should be accordingly. Review Plan Documents Review qualified retirement plan documents, health and welfare documents and summary plan descriptions ( SPDs ) to identify any changes in such plans definitions of marriage and spouse in light of the Supreme Court s DOMA ruling. Employers should also reconsider any special provisions designed to provide same sex sex, to see if such provisions are domestic partners/married couples with benefits similar to married couples of the opposite now redundant or should be modified. Employers should also review the plan documents and SPDs more generally for the use of the term spouse and consider what plan operation changes may be neededd to extend coverage to same sex spouses. For example, plan sponsors should consider whether plan language restricting the definition of spouse or marriage to only those of the opposite sex or which are tied to DOMA should be removed to the extent the company has employees in states that recognize same sex marriage or, perhaps, were married in such states. Employers also would be well advised to review their supplemental executive retirement plans, deferredd compensation and other nonqualified plans for the potential impact of plan terms such as spouse in light of Windsor. Modify Plan Policies and Procedures Update plan operations and payroll systems to treat lawful same sex marriages as spouses, and reflect the same in updated policies and procedures, including HR manuals. This includes benefit distribution packages, minimum required distributions procedures, QDRO procedures, open enrollment materials, and beneficiary designation forms. Any plan changes should also be reflected in a Summary of Material Modification and/or the SPD. Payroll Practices This area could be impacted in numerous ways, including somee immediate changes or action steps: Stop reporting otherwise tax free healthh and fringe benefits as imputed income to the employee, to the extent that the Code extends the benefit to a spouse. Consider filing IRS refund claims (Form 941 X) for employment taxess paid on imputed income for same sex spouse benefits for open tax years (generally 3 years). 9

10 Perform a general overview of all employee fringe benefits, and consider whether changes are necessary to these policies and procedures (including the employeee handbook) to treat lawful same sex marriages as spouses. * * * The Supreme Court's DOMA decision and its impact will grow as more states are likely to recognize same sex marriages. The decision requires careful analysiss by employerss and insurers as to its full implications. Groom can assist you in reviewing plan documents, HR policies and participant communications for compliance with the Court s ruling. Plan amendments will need to be draftedd and the risk of potential benefit claims under Title I of ERISA (for periods before the ruling) considered. 10