Can an employee get reimbursed for medical and/or dependent care expenses incurred by a domestic partner of that employee?? I assume that the answer is depends on whether or not the domestic partner is a "dependent" under the Internal Revenue Code but wanted to get thoughts on this. Is there a ruling or case on this? What if the flex plan defines "dependents" to include domestic partners - could the FSA be disqualified?? ANY thoughts/cites/articles would be appreciated.

The IRS does not see a same sex domestic partner as a spouse. If the domestic partner can be considered a dependent under federal guidelines (defined as person who resides in the employee’s household and who receives at least 50% of support from the employee), then they can be part of the employee's FSA under federal rules. You are correct there. Basically, Section 125 rules are upper limits. You can restrict, but you can't be more generous (unlike COBRA, which are minimum standards). If the domestic partner does not qualify as a dependent under Section 152, the plan doc cannot bypass this.