With limited exceptions, COBRA requires that a group health plan provide continuation coverage when certain triggering events cause an employee, the employee's spouse, and/or dependent child to lose coverage under the plan terms. COBRA-triggering events include the covered employee's termination of employment or divorce and a dependent child ceasing to be a dependent under the plan terms.
A same-sex domestic partner, however, will never qualify as the employee's spouse because another federal law, namely the Defense of Marriage Act of 1996, provides that a spouse includes only a person of the opposite sex who is a husband or wife of the covered employee. So, for example, when a covered employee and his domestic partner lose group health plan coverage due to the employee's termination from employment, only the former employee can elect COBRA coverage for himself. The former employee's domestic partner has no COBRA rights. If the former employee elects and timely pays for COBRA coverage for himself, he can add his domestic partner to the plan during an open enrollment period to the same extent that an employee who has not terminated from employment can add a domestic partner to plan coverage during this period.
This coverage is not COBRA coverage, meaning that the domestic partner's plan coverage will then end when the former employee's COBRA coverage ends (due to the expiration of the former employee's continuation coverage period, the former employee's death, etc.). In the same example, however, the domestic partner's dependent child who loses coverage due to the covered employee's termination from employment will have, and must be provided, COBRA coverage rights independent of the covered employee's continuation coverage rights.
A partner in RJ&L's Colorado Springs office, Jan A. Steinhour practices exclusively in the area of employee benefits planning and administration. Her experience includes assistance to employers with all types of pension and welfare benefit plan issues involving fiduciary responsibility, plan administration, benefits claims, and federal and state tax and labor law consequences. She frequently assists clients with the design, implementation, and maintenance of executive compensation programs, severance programs, health benefits, stock option plans, golden parachute arrangements, and tax-qualified retirement plans.
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