U.S. Department of Labor Guidance Regarding Same-Sex Marriages

In United States v. Windsor, the United States Supreme Court held as unconstitutional Section 3 of the Defense of Marriage Act (“DOMA”). Section 3 of DOMA provided that, in any federal statute: (i) the term “marriage” meant a legal union between a man and a woman; and (ii) the term “spouse” referred only to an individual of the opposite sex. The Windsor decision affects over 1,000 federal laws and regulations, including ERISA and the Internal Revenue Code. Therefore, it is important for plan sponsors to understand how the Windsor decision affects the administration of their employee retirement and welfare benefit plans.

The U.S. Department of Labor ("DOL") recently issued guidance interpreting the Windsor decision in order to assist plan sponsors with understanding the decision’s implications on their employee benefit plans. That DOL guidance adopts a “state of celebration” rule, clarifying that, for purposes of ERISA and the provisions of the Internal Revenue Code the DOL interprets: (i) the term “marriage” includes a same-sex marriage that is legally recognized under state or foreign law; and (ii) the term “spouse” includes any individuals who are lawfully married under any state or foreign law, including individuals of the same sex. These definitions apply even if the individuals are domiciled in a state that does not recognize same-sex marriages. (The terms “marriage” and “spouse” do not include individuals who are in a civil union or a domestic partnership.) This DOL guidance is consistent with guidance that was issued earlier by the Internal Revenue Service. Additional guidance addressing specific provisions of ERISA and the related regulations is expected.

Employers that sponsor retirement plans must generally begin treating same-sex spouses in the same manner as opposite-sex spouses. However, neither the Windsor decision nor the subsequent guidance require an employer to extend ERISA welfare benefits to same-sex spouses at this time. Therefore, an employer may be permitted to extend, for example, spousal coverage under its ERISA health plan only to spouses of the opposite sex.

Please contact your Foster Swift employee benefits professional if you have any questions regarding the IRS or DOL guidance.