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Understanding Employers' Options and Obligations with Same-Sex Spouse Benefits in a Post-Windsor World

Understanding Employers' Options and Obligations with Same-Sex Spouse Benefits in a Post-Windsor World
Product Code - LGA222
Speaker(s): Todd A. Solomon, McDermott Will & Emery; Brian J. Tiemann, McDermott Will & Emery
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The Supreme Court’s June 2013 ruling on the constitutionality of the federal Defense of Marriage Act (DOMA) and subsequent regulatory guidance significantly changed employers’ options and obligations with respect to benefits coverage for same-sex spouses. The U.S. Department of the Treasury, the Internal Revenue Service (IRS), and the Employee Benefits Security Administration (EBSA) division of the Department of Labor have all issued guidance providing that same-sex couples legally married in a jurisdiction with laws authorizing same-sex marriage will be treated as married for federal tax purposes, regardless of whether the couple resides in a state where same-sex marriage is recognized. As a result, all employers — not just those located in states where same-sex marriage is legal – need to review their benefit plans to determine whether certain benefits must be extended to employees’ same-sex spouses.

Attend this program to gain an understanding of the potential implications for employee benefit programs following United States v. Windsor, including effects on pensions, retirement plans, welfare benefits, and taxes.

Educational Objectives

• Understand the implications for defined benefit pension plans, both active and frozen, regarding the determination of surviving spouse annuities and consent for payment of the participant’s pension benefits in a form other than a joint and survivor annuity.

• Learn about how 401(k) plans must handle the determination of death benefits for a same-sex spouse and consent for non-spouse beneficiary designations. There are also implications for participants who were married prior to the ruling concerning the automatic designation of their spouse as beneficiary even if someone else was previously designated.

• Discover whether self-insured welfare plans will be required to extend spousal benefit coverage to same-sex spouses under federal law. Currently, state insurance law mandates do not apply to self-insured plans but employers that continue to provide benefit coverage only to opposite-sex spouses are almost certain to face the risk of legal challenges under federal discrimination law.

• Find out about whether employees will still have to pay federal income taxes on the income imputed for an employer’s contributions to a same-sex spouse’s medical, dental and vision coverage plans. Will the employee be able to pay for the same-sex spouse's coverage on a pre-tax basis under a Section 125 plan and receive reimbursements for same-sex spouse expenses under FSAs, HSAs, and the like?

Who would benefit most from attending this program?

Benefits practitioners and human resource professionals; in-house counsel; corporate and employment attorneys.

Program Level: Intermediate

Credit Available: CLE. For additional information, please see the “CLE Credit” tab.

Todd A. Solomon, McDermott Will & Emery; Brian J. Tiemann, McDermott Will & Emery

Todd A. Solomon, McDermott Will & Emery
Todd Solomon is a partner in the Employee Benefits practice group of McDermott Will & Emery LLP, practicing in the firm’s Chicago office. Mr. Solomon counsels all types of employers with respect to their pension plans, welfare benefit plans, and executive compensation arrangements. He is the author of Domestic Partner Benefits: An Employer’s Guide, which is the leading publication on domestic partner benefits, and is a periodic contributor to news periodicals. He is also a member of his firm’s LGBT diversity, recruiting, and pro bono committees. Mr. Solomon also advises multi-national clients on global employee benefits matters and compliance issues.

Mr. Solomon earned a J.D., with honors, from the University of Chicago Law School and a B.A., with high distinction, from the University of Michigan. He is admitted to practice in Illinois.

Brian J. Tiemann, McDermott Will & Emery
Brian Tiemann is a member of the Employee Benefits practice group in the Chicago office of McDermott Will & Emery LLP. He is a frequent author and speaker on employee benefit issues resulting from domestic partnerships and same-sex marriages and is a member of his firm’s diversity and recruiting committees. Mr. Tiemann also works on a variety of employee benefits matters related to pension plans, 401(k) plans, employee stock ownership plans (ESOPs), cafeteria and welfare plans, and executive compensation.

Mr. Tiemann earned a J.D. from the University of Virginia School of Law and a B.A., magna cum laude, from St. John’s University. He is admitted to practice in Illinois.

This program’s CLE-credit eligibility varies by state. Bloomberg BNA is an accredited provider in the states of New York*, California, Pennsylvania, Texas and Virginia, and most other jurisdictions grant CLE credit on a per-program basis. At this time, Bloomberg BNA does not apply directly to the states of Florida, Rhode Island, Montana and Hawaii although credit is usually available for attorneys who wish to apply individually. Additionally, the following states currently do not grant credit for Bloomberg BNA OnDemand programming: Arkansas, Ohio, Nebraska, and Delaware. All requests are subject to approval once the live webinar has taken place or the customer has viewed the OnDemand version. Please contact the Bloomberg BNA accreditations desk if you have specific questions that have not been addressed.

If you have further questions regarding a specific state or how to file for CLE credit, please contact Bloomberg BNA customer service at 800-372-1033 and ask to speak to the CLE Accreditation Coordinator.

Hardship Policy
For information regarding Bloomberg BNA’s Hardship Policy, please visit the Continuing Education Information page.

For more information about Mandatory or Minimum Continuing Legal Education (MCLE) requirements, visit the American Bar Association website at

*Bloomberg BNA is an accredited provider in New York for experienced attorneys only.