Q.- We are going to implement domestic partner benefits. Should we extend domestic partner benefits to FSA participants?
A.- Domestic partner benefits do not really apply to an FSA. A domestic partner's medical expenses can not be reimbursed from an employee's health care flexible spending account plan, unless the domestic partner is the employee's dependent for health coverage purposes.
To be eligible for reimbursement from a health care flexible spending account, the expense must be incurred by the employee, the employee's spouse, the employee's child who has not attained age 27 as the the end of the taxable year, or the employee's tax dependent for health care purposes. Under the federal Defense of Marriage Act (DOMA), a "spouse" for federal tax purposes can only be a person of the opposite sex who is a husband or wife. This means that a same-sex domestic partner cannot be a spouse for purposes of a health FSA reimbursement. A domestic partner's expenses may only qualify for reimbursement from the health FSA if he or she is the employee's tax dependent for health coverage purposes.