The United States Supreme recently ruled in United States v. Windsor that Section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional. This section of the act defined “marriage” for purposes of federal law to mean only a legal union between one man and one woman and the term “spouse” to mean only a person of the opposite sex who is a husband or wife. Although the Windsor case involved a claim for refund of federal estate taxes paid by the surviving spouse in a same-sex marriage, the ruling implicates over 1,000 federal laws to which DOMA applies. The Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code (Code) which govern many employee benefit plans are among these federal laws. Many

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of these benefit plans covered by ERISA and the Code contain provisions that refer to “marriage” and require spousal consent. Accordingly, the Windsor case may have a significant effect on your employee benefit plan.

In Windsor, the court reiterated that the regulation of marriage has traditionally been within the authority and jurisdiction of the states. Consistent with this notion, the Supreme Court left untouched the provision of DOMA that allows states to decide whether to recognize same-sex marriage laws of other states. As of the date of this article, there are 12 States plus the District of Columbia that recognize same-sex marriages, and 7 states that have civil union or domestic partnership rules. Many states, including, Pennsylvania[1] still have same-sex statutes similar to DOMA that define marriage as between a man and a woman. Because of the conflicting state laws regarding the definition of “marriage,” the Windsor ruling leaves some unanswered questions for benefit plan administrators. For instance, post-DOMA, it is unclear how a plan administrator should treat a participant in a same-sex marriage who resides in New York, which recognizes same-sex marriage, versus a participant in a same-sex marriage who resides in Florida, which does not recognize same-sex marriages. In other words, which law controls? The law of the state in which the marriage occurred or the law of the state in which they currently reside?

Moreover, what about those participants who under Windsor are entitled to survivor retirement benefits, but were denied such benefits pre-Windsor? Will Windsor apply retroactively, thus entitling them to a benefit under the plan? These are some of the questions plan administrators will have to answer in light of the Windsor decision. The good news is that some federal guidance came on August 29, 2013 in the form of an IRS revenue ruling. In Revenue Ruling 2013-17, the IRS ruled that all same sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same sex marriage. While this rule provides some much needed guidance from the federal government, the rule is limited to interpretation of “marriage” and “spouse” under the Code and it specifically excludes domestic partnerships and civil unions. While it does not address the retroactive application of Windsor, the IRS did indicate its intent to provide further guidance on that issue. In the meantime, plan administrators should review benefit plan documents and update affected provisions to comply with Rev. Rul. 2013-17. For all other federal programs affected by the Code but administered by other agencies, benefit plans will have to wait for guidance from those agencies. Carroll Consultants, Ltd. will continue monitoring this issue and will keep you updated on any new developments.

Founded in the 1950s, Carroll Consultants, Ltd. has experienced professionals with a wealth of knowledge about retirement plans. If you have any questions about this article or our services, please contact Marcie Carroll, at mcarroll@cclbenefits.com, or (610) 225-1210.

This material is not intended to provide specific legal or other professional advice.

[1] Although the Commonwealth of Pennsylvania does not recognize same-sex marriages, one county in Pennsylvania began issuing marriage licenses to same-sex couples in 2013 and there is an active court case pushing for the Commonwealth’s legalization of same-sex marriage.