Does an Employer Have to Provide Benefits for an Employee’s Domestic Partner If the Employee Is in a Same-Sex Union?

An Employee Benefits FAQ with Joshua A. Diveley.

In 2013, there was a Supreme Court case named Windsor in which the Supreme Court said that for federal law purposes, the term “spouse” must include a same-sex spouse. The Department of Labor and IRS recently came out and said that to determine whether someone is a same-sex spouse covered by that law, you look at the state of celebration of the marriage. So, with one exception, that is going to apply for all federal benefits–benefits covered by federal law.

The exception is FMLA, which says that the state of residency is what determines whether it is a marriage or not. For example in Nebraska, if an individual lived there then the state of residency would say that we don’t recognize same-sex marriage, but if somebody from Nebraska went to Iowa and was married, the state of celebration, Iowa, would say that the same sex marriage would be valid. So in that case, that would be the one exception where for FMLA purposes, the Nebraska resident would not be covered.

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