Civil Union and Equality Act of 2011 (Senate Bill 30): FAQs

What rights were created by the passage of the Civil Union and Equality Act of 2011?

The Civil Union and Equality Act of 2011 creates the legal relationship of civil unions in the State of Delaware. The Act further recognizes legal unions between two persons of the same sex entered into in jurisdictions outside of Delaware, provided that such unions (and the individuals) meet Delaware eligibility requirements to enter into a civil union in the State of Delaware.  Individuals who enter into a lawful civil union in Delaware on or after January 1, 2012, or whose legal union is recognized under Delaware law on or after January 1, 2012, will have the same rights, benefits, protections, and responsibilities as married persons under Delaware law.

What other states or jurisdictions recognize civil unions or same-sex marriages?

Other states (or jurisdictions) that recognize civil unions or same-sex marriages, which will be recognized by the State of Delaware on January 1, 2012, include:

California (performed from 5-15-08 to 11-4-08);
Connecticut (civil union performed from 10-1-05 to 9-30-10, then merged into marriage 10-1-10);
Coquille Indian Tribe, Oregon (as of 5-20-09);
District of Columbia (as of 3-3-10);
Hawaii (as of 1-1-12);
Illinois (as of 6-1-11);
Iowa (as of 4-3-09);
Massachusetts (as of 5-17-04);
New Hampshire (civil union 1-1-08 to 12-1-09, then merged into marriage 1-1-10);
New Jersey (as of 2-19-07);
New York (as of 7-24-11);
Rhode Island (as of 7-2-11); and
Vermont (civil union 7-1-00 to 8-31-09, and same-sex marriage as of 9-1-09).

What is the term used to describe the legalization of a civil union?

The term, under Delaware law, to legally join two same-sex spouses is “solemnization”.

What is the term used to describe the termination of a civil union?

The term, under Delaware law, to legally terminate a civil union is “dissolution”.

Can I add my civil union spouse and/or civil union spouse’s children to my UD health and prescription drug plan?

Yes, you may add your civil union spouse and/or your civil union spouse’s children to your health and prescription drug plan.

How do I enroll my civil union spouse and/or civil union spouse’s children in my University of Delaware benefits?

Please visit the Office of Human Resources website for the forms that you will need, or contact a Human Resources representative by e-mail (ben-serv@udel.edu) if you have questions.

When can I add my civil union spouse or civil union spouse’s children to my University benefits?

University employees entering into a civil union in Delaware on or after January 1, 2012, who wish to add their civil union spouse and/or their civil union spouse's children onto the employee's health and prescription drug plan, must notify HR-Benefits no later than 30 days after their Delaware civil union.

Employees who have entered into a civil union or same-sex marriage in another jurisdiction prior to January 1, 2012, have until January 31, 2012, to add their civil union spouse and/or their civil union spouse's children on their University health and prescription drug plan.

Flexible Benefits Open Enrollment in May, for coverage effective July 1, will be the next opportunity to enroll a civil union spouse and/or civil union spouse’s children, if not enrolled within the initial eligibility period specified above.

What documents must I provide to Human Resources to enroll my civil union spouse in my benefits?

When you enroll your civil union spouse on your health and prescription drug plan, you must provide the following documents:

What documents must I provide to enroll my civil union spouse’s children in my benefits?
When you enroll your civil union spouse’s children on your medical plan, you must provide the following documents:

What does the term “imputed income” mean with respect to a civil union?

The term imputed income is defined by the Internal Revenue Service (IRS) to be the value of a benefit or service which is considered to be part of an employee’s income for the purpose of calculating an employee’s federal tax liability. Premiums (the monthly cost) for medical care coverage is shared by the University (as the employer) and by the employee. The portion paid by your employer (the University) for your civil union spouse or your civil union spouse’s children who are not your tax dependents is considered to be imputed income. Federal tax will be deducted from the employee’s pay on the amount of imputed income. Imputed income will be reported by the University on the employee’s annual W-2 form for inclusion in the employee’s federal tax return.

Why do I have to pay imputed income for the employer-paid health benefits provided to my civil union spouse and civil union spouse’s children?

The Federal Defense of Marriage Act (DOMA) continues to define a “spouse” as a husband or wife of the opposite sex. This means that while a same-sex couple's union is recognized by the State of Delaware, it is not recognized for the purposes of accessing marriage benefits in federal law. This means health benefits cannot be deducted on a pre-tax basis, and the value of the benefit or service must be considered as part of an employee’s income for the purpose of calculating federal tax liability.

Can my civil union spouse and/or civil union spouse’s children qualify as a tax-qualified dependent for health plan purposes?

For a civil union spouse and/or civil union spouse’s children to be a tax-qualified dependent for health care purposes, the civil union spouse and/or civil union spouse’s children must meet the following requirements, in accordance with the Internal Revenue Code Section 152 (as modified by 105 (b)):

  • Receive at least one-half of his/her support from you;
  • Live with you as part of the same household;
  • Not be claimed as a “qualifying child” dependent by anyone else;
  • Be a U.S. citizen, a U.S. national, or a resident of the U.S., Canada, or Mexico at some time during the year in which you are claiming him/her as a dependent; and
  • Not file a joint federal income tax return (other than for a claim of refund) with the individual’s spouse (applicable to children of civil union spouse).

What is the Certification of Tax Dependent Status for a Civil Union Spouse/Children Form?

The Certification of Tax Dependent Status for a Civil Union Spouse/Children form allows the employee to designate his/her civil union spouse, and each child of the civil union spouse, as either “a tax-qualified dependent” or “not a tax-qualified dependent”. You, as the employee, are required to complete this form when enrolling your civil union spouse and/or your civil union spouse’s children. The completed form must be provided to the UD Office of Human Resources to be included in your file in the event of a future audit by the Statewide Benefits Office. You are responsible for submitting a new form each time the status of your civil union spouse or your civil union spouse’s children’s tax dependency changes.

What if I am unsure if my civil union spouse or his/her children satisfy the definition of a tax-qualified dependent?

If you are unsure if your civil union spouse or your civil union spouse’s children satisfy the definition of a tax-qualified dependent, you should consult with a tax accountant.

Will benefit contributions be subject to imputed income?  How will I know how much imputed income will be assessed each month for benefits to cover my civil union spouse and/or civil union spouse’s children?

Imputed income is not applicable for tax-qualified dependents.
Imputed income is applicable for coverage that includes an employer-paid (University share) portion for dependents (including your civil union spouse) who are not tax-qualified dependents.

Will my benefit deductions be taken from my pay on a pre-tax or after-tax basis if I cover my civil union spouse and/or my civil union spouse’s children on my medical, dental and vision benefits?

Your monthly premiums will be taken on a pre-tax basis for tax-qualified dependents, and on an after-tax basis for dependents that are not tax-qualified.

Can I submit health care expenses for my civil union spouse and/or my civil union spouse’s children for reimbursement through the University’s Flexible Spending Account (FSA) program?

FSA is administered as required by the Internal Revenue Service (IRS), Section 125, which does not require “enrollment” of dependents, as other benefit plans require. The IRS regulations provide for you to submit claims for reimbursement for your civil union spouse and/or your civil union spouse’s children if they are “qualifying relatives” as defined by the IRS.

By signing a FSA claim form requesting to be reimbursed FSA monies, you attest that you are fully responsible for the sufficiency, accuracy, and veracity of all information related to the claim and that, unless an expense for which payment or reimbursement claimed is a proper expense, you may be liable for payment of all related taxes including federal, state, or local income tax amounts paid from the plan which relate to such expense.

If you entered into a civil union in a jurisdiction other than Delaware prior to January 1, 2012 and are currently enrolled in the FSA plan, OR enter into a civil union on or after January 1, 2012 and are currently enrolled in the FSA plan, you may change your elected amount for calendar year 2012 only if your civil union spouse or civil union spouse’s children were not your qualifying relative(s) prior to the date of your civil union.  Additional information may be obtained by contacting the University’s FSA administrator, ASIFlex, at 1-800-659-3035.

What is my responsibility in regard to benefit coverage if my civil union spouse and I dissolve our civil union relationship?

Should you and your civil union spouse dissolve your relationship, the court of jurisdiction will issue a Dissolution Decree. It is your responsibility to provide the UD Office of Human Resources with a copy of the Dissolution Decree within 30 days of the date of the decree. Coverage for your former civil union spouse and/or civil union spouse’s children will be terminated the day after the date of the decree.

If you not provide notification to the UD Office of Human Resources, you will be held financially responsible for all costs incurred by the University for premiums and claims processed from the day after the issuance of the Dissolution Decree.

Can my former civil union spouse and/or my former civil union spouse’s children continue to participate in medical (including prescription drug, dental and vision coverage) via COBRA?

Yes, your former civil union spouse and/or your former civil union spouse’s children may continue to participate in these benefit programs.  The UD Office of Human Resources will process the required documentation upon receiving the Dissolution Decree, as long as it is provided within the required time frame.

If my civil union spouse is also a benefit-eligible UD employee, State employee, Delaware school district employee, or a State pensioner, will we be provided Double State Share (a University contribution that covers the full cost of the health/prescription drug plan)?

No, civil unions are recognized by the State of Delaware effective January 1, 2012. Only individuals who are benefit-eligible employees and/or pensioners prior to January 1, 2012, and whose marriage is recognized by Delaware law prior to January 1, 2012, are eligible to receive Double State Share.

I am a non-exempt employee who is vested in the Delaware Employees’ Pension Plan.  Will my civil union spouse be eligible for survivor benefits upon my death?

Yes, your civil union spouse will, upon your death as a vested participant in the Delaware Employees’ Pension Plan, receive survivor’s benefits.

To whom should I provide documentation regarding pension survivor benefits?

The UD Office of Human Resources will provide the Office of Pensions with a copy of a Civil Union Certificate or Dissolution Decree, to be used for future pension purposes, including survivor benefits.