This is a complex legal topic that continues to evolve. This response is presented from a simple and practical (rather than a legally exhaustive) point of view that will likely satisfy most of our Website users. Also, this revised response replaces a previous version that focused heavily on issues related to the former federal COBRA premium subsidy. Since this subsidy has expired, the primary focus of discussion shifts back to issues controlled by state law. For purposes of this discussion, it does not matter whether the domestic partner is the same sex or opposite sex, the same framework applies.
On June 26, 2013 the United States Supreme Court ruled that legally married same sex couples will be treated the same as other married couples for federal tax and benefit purposes. What this means is that legally married same sex couples living in (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington), the District of Columbia and five Native American tribes are eligible for spousal COBRA benefits the same as any other spouse. The remainder of this article addresses "domestic partner" which, in this context means a partner not recognized by law as a legal spouse.
If a domestic partner was covered by the group health insurance plan prior to the event that triggered the COBRA eligibility then there is no reason for either the insurance company or the employer to force removal of the domestic partner when the coverage status switches from active employee to COBRA continuation. The COBRA enrollment process would be exactly the same as any spouse. Additionally, we are not aware of any instance in recent years where an insurance company or employer has challenged the ability of a previously covered domestic spouse do obtain COBRA coverage based solely on this differentiation.
Conversely, of course, if the domestic partner was not covered by the health plan prior to the event that triggered COBRA eligibility then nothing in this discussion should be interpreted as making the partner eligible to add coverage at this point. Also, nothing in this discussion is meant to indicate that a health plan must provide domestic partner coverage. This continues to be controlled by state law.
The underlying issue of concern is that U.S. federal law that controls COBRA does not recognize domestic partnerships while a growing number of state statutes (that control health insurance issues) do recognize the domestic partnership. Outdated discussions like this 2004 article on onque.com (that focuses on legal history) and this 2009 discussion by Cooley LLP (that focuses on the federal subsidy in effect at that time) explain why COBRA coverage is not available for domestic partners under federal law even when permitted by state law.
Since February 2011, under influence of the Obama administration, the U.S. Department of Justice announced that it will no longer enforce actions related to the Defense of Marriage Act that was frequently the legal basis for federal denial of COBRA benefits for a domestic spouse. This signaled the end of disparity between state and federal law on this issue. The issue was put to rest in June 2013 when the Supreme Court struct down the Defense of Marriage Act.
The most significant area of remaining potential contention on this issue is coverage under a self-insured health plan that is exempt from state insurance laws. In this circumstance it is still conceivable that an employer could assert that a member covered as an allowed domestic partner was not eligible to continue coverage under COBRA. We are not aware of any instance where this has occurred and believe that such disallowance is unlikely to occur in the future.
In states that do not recognize same sex marriage or have a domestic partner statute, applicants who elect individual health insurance as a COBRA alternative may be required to apply for two separate policies rather than include the partner as a spouse on a single policy. Eligibility would be determined by the same criteria as would be applicable to any applicant without regard to the domestic partner issue. In this instance, it is passible that an applicant would be determined eligible for coverage while a domestic partner is determined to be ineligible.
COBRA continuation coverage may provide temporary protection when changing jobs, waiting for other coverage, going through a divorce or negotiating other life transitions. Choosing the right health insurance is crucial to protect your health and financial security.