DOL Issues Guidance on Same-Sex Marriages and Employee Benefit Plans


On September 18, 2013, the U.S. Department of Labor issued guidance interpreting the U.S. Supreme Court's decision in United States v. Windsor, which was decided on June 26, 2013.

In Windsor, the Court struck down provisions of the Defense of Marriage Act that limited the terms "spouse" and "marriage" to exclude same-sex partners and marriage.

Pursuant to the direction of the President and the Attorney General to review all relevant federal statutes to ensure the Supreme Court's decision "is implemented swiftly and smoothly," the DOL's Employee Benefits Security Administration announced a Technical Release to provide guidance to plans, plan sponsors, fiduciaries and participants on how the decision impacts the Employee Retirement Income Security Act of 1974 (ERISA).

According to the Release, the terms "spouse" and "marriage" in Title I of ERISA and in related regulations, 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.

This answer one question that many commentators felt was left open after the Windsor decision. The validity of marriages will thus be determined based on the state in which the marriages were performed, not based on where the married couple now resides. The DOL noted in its statement that this approach "provides a uniform rule of recognition that can be applied with certainty by stakeholders, including employers, plan administrators, participants, and beneficiaries." A rule based on where a couple currently resides would raise challenges, particularly for employers who have employees in more than one state or whose employees move to another state while entitled to benefits. To track these changes and the status of each state law would be complex and could result in error, confusion, inconsistency, or delays, according to the DOL.

Moreover, the "approach is consistent with the core intent underlying ERISA of promoting uniform requirements for employee benefit plans," says the DOL, which notes that the Release was coordinated with the Department of Treasury/IRS and the Department of Health and Human Services, and that the departments were in agreement that this approach promotes uniformity in administration of employee benefit plans and affords the most protection to same-sex couples.

What is not included in the definition of the terms "spouse" and "marriage," however, are individuals in a formal relationship recognized by a state that is not designated a marriage under state law, such as a domestic partnership or a civil union.

As used in the guidance, "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.

"This decision represents a historic step toward equality for all American families, and I have directed the department's agency heads to ensure that they are implementing the decision in a way that provides maximum protection for workers and their families," said Secretary of Labor Thomas E. Perez in a released statement. "The department plans to issue additional guidance in the coming months as we continue to consult with the Department of Justice and other federal agencies to implement the decision."

According to the Employee Benefits Security Administration, the agency oversees approximately 701,000 private sector retirement plans, 2.3 million health plans and other plans that provide benefits to more than 141 million Americans.

The full text of the technical release is available at www.dol.gov/ebsa/newsroom/tr13-04.html.

The Employee Benefits Security Administration intends to issue future guidance addressing specific provisions of ERISA and its regulations, which will be made available at www.dol.gov/ebsa.