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The Wagner Law Group

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 22 attorneys engaged exclusively in employee benefits, estate planning and employment law. Six of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.





Contact Info

The Wagner Law Group


  Integrity | Excellence



Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Palm Beach Gardens 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418



Tel: (813) 603-2959

Fax: (813) 603-2961

101 East Kennedy Boulevard

Suite 2140
Tampa, FL  33602 


San Francisco

Tel: (415) 625-0002

Fax: (415) 358-8300

315 Montgomery Street

Suite 904

San Francisco, CA 94104


St. Louis

Tel: (314) 236-0065

Fax: (314) 236-5743
100 South 4th Street, Suite 550
St. Louis, MO  63102 







December 18, 2015


 Health and Welfare Law Alert




  IRS Issues Guidance on Same-sex

Spouse Decision




The IRS has issued Notice 2015-86 regarding application of the Supreme Court decision in Obergefell v. Hodges for employee benefit plans. In Obergefell, the Court ruled that the Fourteenth Amendment to the U.S. Constitution requires each state to allow same-sex couples to marry. Accordingly, all states must not only permit same-sex marriages within the state, but must also recognize same-sex marriages from other jurisdictions. (See the Alert 7/9/15 for more information on this decision.)


The Notice stated that, because the Court's earlier decision in U.S. v. Windsor had already eliminated the provision in the Defense of Marriage Act that had prevented the federal government from recognizing same-sex marriages, the Obergefell decision did not affect federal taxation of same-sex marriage benefits.


 The Notice also confirms that federal tax law generally does not require health and welfare plans to offer any specific rights or benefits to the spouse of a participant. (Note: Other federal and state laws may require that plans offering coverage to spouses must include same-sex spouses in their offer.)


The Notice provides that if a health and welfare plan offers benefits to participants' "spouses," Obergefell would require a change in the group of spouses eligible for coverage. For example, if a health and welfare plan provides that coverage is offered to the spouse of a participant as defined under applicable state law, and applicable state law has expanded to include same-sex spouses as a result of Obergefell, then the terms of the plan would require an offer of coverage to same-sex spouses as of the date of the change in applicable state law.


In addition, if the eligibility criteria for a qualified benefit offered under a cafeteria plan change during a plan year to add eligibility for same-sex spouses, the participant may change his election mid-year because this is a status change event that constitutes a "significant improvement" in coverage. 


A cafeteria plan that allows participants to make a change in election due to a significant improvement in coverage may permit a participant to revoke an existing election and submit a new election. This new election may be an election by a participant to add coverage for a same-sex spouse to a benefit option in which the participant is already enrolled, or an election by a participant who had not previously elected coverage to add coverage for the participant and a same-sex spouse.




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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.