Same-Sex Marriage

[Guest FLALADY]

I recently received a census report that included an employee that was married to an owner of the same sex. I am curious whether ERISA recognizes the marriage and if family attribution would apply to the non-owner employee?

The two were married in Connecticut but live in Florida, if it makes a difference.

[MoJo]

I recently received a census report that included an employee that was married to an owner of the same sex. I am curious whether ERISA recognizes the marriage and if family attribution would apply to the non-owner employee?

The two were married in Connecticut but live in Florida, if it makes a difference.

I believe the current law - at the federal level - is that same sex marriages are not recognized for purposes of applying federal statutes.

[ETA Consulting LLC]

I believe the current law - at the federal level - is that same sex marriages are not recognized for purposes of applying federal statutes.

Agreed. I, too, 'believe' that qualified plans are governed under the Federal Defense of Marriage Act (DOMA). This would apply to attribution rules under Section 318 and Spousal Beneficiary rights under Section 401(a)(11). Not sure the impact on controlled group attribution under Section 1563 as there are some 'community property' concerns there.

I would like to see some study analysis that addresses each of these areas where spousal issues many arise.

Good Luck!

[masteff]

There has been some action to get DOMA overturned. I think one or two district courts so far have done so. However even if you were in those districts, I would not even remotely begin to bypass DOMA. Especially on something complicated like the family attribution rules.

http://www.csmonitor.com/USA/Justice/2012/...n-Supreme-Court

[John Feldt ERPA CPC QPA]

In example 9.21.3 of Derrin's "Who's the Employer" book, 6th edition, he has a note about this. He says DOMA defines marriage, but he mentions that an adoption of a minor child by a same gender couple can create the same attribution results as would occur for opposite-gender married couples. this is because the parent-child relationship is determined under state law.

So the state rules would determine attribution if kids are involved, but DOMA determines attribution at the marriage level.