ERISA-DOL Offers Its Own Guidance On Treatment Of Same-Sex Spouses After Windsor

As a follow up to the IRS guidance on this topic (see my blogs of September 4th and 6th), the Department of Labor (the “DOL”) has issued Technical Release No. 2013-04, which provides guidance for employee benefit plans on the definition of “Spouse” and “Marriage” under ERISA and the Supreme Court’s Decision in United States v. Windsor. Here are the highlights of what the DOL said:

Introduction. On June 26, 2013, the Supreme Court of the United States ruled, in United States v. Windsor, that section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional. Section 3 provides that, in any Federal statute, the term “marriage” means a legal union between one man and one woman as husband and wife, and that “spouse” refers only to a person of the opposite sex who is a husband or a wife.

Guidance. In general, where the Secretary of Labor has authority to issue regulations, rulings, opinions, and exemptions in title I of ERISA and the Internal Revenue Code, as well as in the Department’s regulations at chapter XXV of Title 29 of the Code of Federal Regulations, the term “spouse” will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term “marriage” will be read to include a same-sex marriage that is legally recognized as a marriage under any state law.

For purposes of this guidance, the term “state” means any state of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Northern Mariana Islands, any other territory or possession of the United States, and any foreign jurisdiction having the legal authority to sanction marriages.

The terms “spouse” and “marriage,” however, do not include individuals in a formal relationship recognized by a state that is not denominated a marriage under state law, such as a domestic partnership or a civil union, regardless of whether the individuals who are in these relationships have the same rights and responsibilities as those individuals who are married under state law. The foregoing sentence applies to individuals who are in these relationships with an individual of the opposite sex or same sex.

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