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Employee Benefits after Windsor

by Cadwalader Wickersham Taft LLP - New York Office

August 28, 2013

Previously published on August 26, 2013

On June 26, 2013, the United States Supreme Court declared Section 3 of the federal Defense of Marriage Act (“DOMA”) unconstitutional. Section 3 of DOMA, which defined “spouse” and “marriage” for all provisions of federal law, provided that a “spouse” was “a person of the opposite sex who is a husband or wife” and “marriage” was a “legal union between one man and one woman as husband and wife.” However, the Supreme Court did not consider the validity of Section 2 of DOMA, which gives states the right to deny recognition of same-sex marriages valid in other states; accordingly, Section 2 remains in effect. The removal of Section 3 and the retention of Section 2 have broad implications for employee benefit plans and raise many questions regarding the choice of law between states that do and do not recognize same-sex marriage, whether any benefits are retroactive, and what position the Internal Revenue Service (“IRS”) will take on the recognition of same-sex marriage for Federal tax purposes.


The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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