March 2, 2011

Marriage - Where Does It Stand?

Even without a full blown philosophical discussion of the meaning of marriage, the issues surrounding this concept are fraught with uncertainty.  On February 23, 2011, in a letter to John Boehner, Speaker of the U.S. House of Representatives, and by an Official Statement, Attorney General Eric Holder, on behalf of the Department of Justice (DOJ), indicated that the DOJ will no longer defend the Defense of Marriage Act (DOMA).  DOMA is a federal law, enacted in 1996 (codified at 1 U.S.C. §7 and 28 U.S.C. §1738C), that defines marriage as, “a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife”.

While the DOJ will no longer defend DOMA, it is still the law of the land unless and until it changed by act of Congress or judicial edict.  Therefore, for federal purposes, a spouse is still defined as “a person of the opposite sex who is the husband or wife”.

Many states have laws either statutory or court-defined, granting marriage or marriage–like status, to a variety of relationships. 

Last month, both Illinois and Hawaii enacted laws establishing same-sex civil unions as a legal relationship recognized within the state (see Benefit Plans Impacted by Evolving World of Recognized Relationships, February 2011 edition of the Benefit Beat). Six other states and the District of Columbia have also enacted laws recognizing same-sex relationships. Below is a list reflecting the types of recognized relationships, together with the effective dates.

Relationship Recognized


Same-sex Marriage

Same-sex Civil Union

Opposite-sex Civil Union

Effective Date





October 28, 2008

District of Columbia




January 17, 2010





January 1, 2012





June 1, 2011





April 3, 2009





May 17, 2004

New Hampshire




January 1, 2010

New Jersey




February 19, 2007





September 1, 2009

Special note about California: California recognizes marriages between same-sex partners that occurred between June 16, 2008 and November 4, 2008. The issue of same-sex marriage in California is currently before the 9th Circuit Court of Appeals.

In the above-listed jurisdictions, the expanded group of partners receives the same rights and privileges afforded opposite-sex marriage partners for state tax and benefit purposes.  However, it is important to remember that for federal purposes, the rights and privileges of marriage are only still afforded to opposite sex spouses.  Clearly, this is an issue that is in transition; and the ever changing landscape must be carefully monitored by employers, and specifically, their Human Resources and benefit professionals.


The information contained in this Benefit Beat is not intended to be legal, accounting, or other professional advice, nor are these comments directed to specific situations.

As required by U.S. Treasury rules, we inform you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this Benefit Beat is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any penalties that may be imposed by the Internal Revenue Service.

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