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Northwest OH Legal Blog

Tuesday, November 19, 2013

DOL Says ‘Spouse' and ‘Marriage' in ERISA Include Same-Sex Legally Married Couples

The terms “spouse” and “marriage” under the Employee Retirement Income Security Act and related guidance should be read to include same-sex legally married couples, the Department of Labor's Employee Benefits Security Administration said in Technical Release 2013–04. “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,” according to the guidance, issued Sept. 18, 2013.

The DOL said the guidance is “the most natural reading” of the law and is consistent with the U.S. Supreme Court's decision in U.S. v. Windsor which invalidated a key provision of the Defense of Marriage Act. The guidance says that the terms “spouse” and “marriage” don't include “individuals in a formal relationship recognized by a state” that isn't considered a marriage under that state's law, including domestic partnerships and civil unions.

For purposes of the guidance, the term “state” means any state of the U.S., the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam and any other territory or possessions of the U.S., the release said. In addition, it includes “any foreign jurisdiction having the legal authority to sanction marriages,” the DOL said. Secretary of Labor Thomas E. Perez said the DOL expects to issue additional guidance in the near future.

The department said that a “rule that recognizes marriages that are valid in the state in which they were celebrated, regardless of the married couple's state of domicile, provides a uniform rule of recognition that can be applied with certainty by stakeholders, including employers, plan administrators, participants, and beneficiaries.”

The DOL said if there were a rule for employee benefit plans based on the state of domicile, it “would raise significant challenges for employers that operate or have employees (or former employees) in more than one state or whose employees move to another state while entitled to benefits,”  It would also place large administrative and financial burdens on employers and plan administrators An employee benefit plan based on the state of domicile also would cause plan administration to become “increasingly complex,” requiring that benefit plan administrators be retrained and systems be reworked “to comply with an unprecedented and complex system that divides married employees according to their sexual orientation,”

“Such a system would be burdensome for employers and would likely result in errors, confusion, and inconsistency for employers, individual employees, and the government. In addition, given the interconnectedness of statutory provisions affecting employee benefit plans, recognition of marriage based on domicile could prevent qualification for tax exemption, lead to loss of vested rights if spouses move, and complicate benefits determinations if spouses live in different states,” the guidance said. “All of these problems are avoided by the adoption of a rule that recognizes marriages that are valid in the state in which they were celebrated. That approach is consistent with the core intent underlying ERISA of promoting uniform requirements for employee benefit plans.”


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