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The issue of retroactivity in same-sex marriage

Florida residents may know that same-sex marriage became legal in their state several months before the historic June 2015 Supreme Court ruling that made it legal throughout the United States. Until the June 26 decision, some states did not provide this freedom, and neither were benefits nor rights provided. The question of retroactivity regarding certain employer health plan benefits remains unanswered.

When the Supreme Court granted same-sex couples the right to marry under the protection given by the Fourteenth Amendment to the Constitution, retroactivity was not addressed in the majority opinion delivered by Justice Kennedy. Guidance for retroactivity has not been proffered by federal agencies, including the Internal Revenue Service. Some reports indicate the Social Security Administration will provide benefits retroactively, however.In two cases brought to federal courts in the past 12 months, the issue of health insurance has been questioned. In one case, an assisted living facility employee asked to have a same-sex spouse covered under the company's health care plan. This was denied since the facility did not grant that to married partners who were the same sex. The parties were sent to arbitration.

The second case also involves health care benefits for a same-sex spouse. Although the defendant company had changed its policy after the 2013 Windsor decision in which the Supreme Court held the federal Defense of Marriage Act to be unconstitutional and started to allow same-sex partners to be covered under its health care plan, the plaintiff is suing for the bills accumulated before the policy was changed.

Although the 2015 Obergefell decision was historic, many questions still remain in its wake, such as adoption and divorce. A same-sex spouse who is dealing with such an issue may want to turn to a family law attorney for guidance.

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