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The New Jersey Department of Banking and Insurance had no doubts about whether the new law regulated health benefits, however. It has issued a bulletin confirming that, under the new law, all health plans that include dependent coverage must provide coverage to civil union partners.

ERISA Preemption

In addition to regulating employee benefit plans, ERISA generally preempts state laws that “relate to” employee benefit plans. If a state law is preempted by ERISA, it cannot be enforced against an employee benefit plan that is subject to ERISA. Courts generally hold that state laws requiring employer-sponsored plans to cover particular items or individuals are preempted by ERISA. Therefore, it is likely that a court would find that ERISA preempts the spousal parity provisions in the New Jersey law. Of course, there is no guarantee that a given court will find that ERISA preempts a given law, but a court challenge along these lines is likely to prevail.

Exceptions to ERISA Preemption ERISA does not preempt state laws insofar as they relate to plans that are not subject to ERISA. These plans include government and church plans. ERISA preemption also does not apply to many state laws that regulate multiple employer welfare arrangements (MEWAs). These plans remain subject to state spousal parity requirements.

In another and perhaps more important exception, ERISA does not preempt state laws that regulate insurance – even if the insurance provides coverage under an employee benefit plan that is subject to ERISA. State insurance laws do not regulate employers, of course, but these laws affect employers that provide benefits by purchasing insurance policies because insurers cannot sell policies that do not comply.As interpreted by the New Jersey Department of Banking and Insurance, the new civil union law requires every health insurance policy issued in New Jersey to include coverage for civil union partners, even if the employer purchasing the policy does not want to cover civil union partners. Therefore, employers that provide health benefits through insurance that is subject to New Jersey law will end up complying with spousal parity mandates.

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Self-funded benefits, which generally are paid directly from the employer’s general assets instead of through an insurance policy, are not affected by insurance regulations. ERISA preemption would hold sway with respect to self-funded benefits and an employer would not be required to extend those self-funded benefits to civil union partners. Of course, self-funded government and church plans, as well as MEWAs, would be subject to the New Jersey civil union law because ERISA generally does not preempt state laws with respect to these plans.

Adding DOMA to the Mix: Federal Tax Implications

DOMA by itself does not affect state-law spousal parity requirements, but it does affect taxation of the health benefits a civil union partner receives. This is because the DOMA definition of spouse – a person of the opposite sex who is legally married to the employee under state law – applies to all federal laws, including federal tax laws. Parties to a same-sex civil union, therefore, do not qualify as spouses when applying federal law. The federal tax exclusion that applies to a spouse’s coverage under an employer- sponsored group health plan is not available for a civil union partner’s coverage, even if that coverage is required by state or local law. If, however, a civil union partner can qualify as an employee’s dependent, then the federal tax exclusion for health coverage provided to an employee’s dependents is available.

New Jersey Department of Health and Senior Services APPLICATION FOR LICENSE

MARRIAGE

REMARRIAGE

CIVIL UNION

REAFFIRMATION OF CIVIL UNION

(PLEASE PRINT OR TYPE)

DECLARATION OF APPLICANT A (Giving false information constitutes perjury.)

DECLARATION OF APPLICANT B (Giving false information constitutes perjury.)

1. Name (First, Middle, Last) (List name given at birth or on birth certificate)

1. Name (First, Middle, Last) (List name given at birth or on birth certificate)

Street Address (Current Legal Residence) (City, Borough, Twp.) (See Note 1)

Street Address (Current Legal Residence) (City, Borough, Twp.) (See Note 1)

County (See Note 4)

State

Zip Code

County (See Note 4)

State

Zip Code

1a. Current Name (if different)

2. Date of Birth

1a. Current Name (if different)

2. Date of Birth

3. Birthplace

4. Sex M

F

5. Age(See Note 2) 3. Birthplace

4. Sex M

F

5. Age(See Note 2)

6. Domestic Status (at this time) (See Notes 3 and 5) Date

Place

6. Domestic Status (at this time) (See Notes 3 and 5) Date

Place

Single

Single

Widowed Divorced Annulled

Widowed Divorced Annulled

Current Domestic Partner

Current Domestic Partner

Former Domestic Partner

Former Domestic Partner

Former Civil Union Partner

Former Civil Union Partner

For Remarriage to the same spouse, or Reaffirmation of Civil Union to the same partner, enter date and place of original ceremony:

For Remarriage to the same spouse, or Reaffirmation of Civil Union to the same partner, enter date and place of original ceremony:

Date

Place

Date

Place

Marriage Civil Union

Marriage Civil Union

7a. For Marriage License Applicants: Enter number of times ever Married (if applicable):

7b. Name of Most Recent Spouse (if any) (List name given at birth or on birth certificate):

7a. For Marriage License Applicants: Enter number of times ever Married (if applicable):

7b. Name of Most Recent Spouse (if any) (List name given at birth or on birth certificate):

8a. For Civil Union Applicants: Enter number of times ever in a Civil Union if applicable):

8b. Name of Most Recent Civil Union Partner (if any) (List name given at birth or on birth certificate):

8a. For Civil Union Applicants: Enter number of times ever in a Civil Union if applicable):

8b. Name of Most Recent Civil Union Partner (if any) (List name given at birth or on birth certificate):

9a. Father’s Full Name

9b. Birthplace

9a. Father’s Full Name

9b. Birthplace

10a. Mother’s Full Maiden Name

10b. Birthplace

10a. Mother’s Full Maiden Name

10b. Birthplace

11. Are you related to Applicant B? If “YES,” how?

Yes

No

11. Are you related to Applicant A? If “YES,” how?

Yes

No

INFORMATION TO BE COMPLETED BY EITHER APPLICANT

12. In which Incorporated Municipality in New Jersey do you intend for the ceremony to be performed? (See Note 4)

13 Intended Date of Ceremony

14. Telephone Number where either applicant can now be reached:

15. Name and mailing address of person who is to perform the ceremony:

16. Mailing Address where you may be reached after the ceremony:

(See Notes on Page 2)

Continue with Declaration of Identifying Witness and Oath.

REG-77 MAY 07

Willis North America 08/07

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