On September 18, 2013, the United States Department of Labor ("DOL") issued EBSA Technical Release 2013-04 ("Release"), which provides that same-sex couples who enter into marriages in jurisdictions that recognize such marriages will be treated as married for purposes of the Employee Retirement Income Security Act of 1974 ("ERISA"), and provisions of the Internal Revenue Code that the DOL is responsible for interpreting.
The Release follows, and is consistent with, recent guidance provided by the IRS in Revenue Ruling 2013-17 in response to the landmark U.S. Supreme Court decision, U.S. v. Windsor ("Windsor"), which held that section 3 of the Defense of Marriage Act was unconstitutional.
As with the prior IRS guidance, the DOL Release adopts the "state of celebration" rule that provides for the recognition of any marriage legally performed in any state, U.S. territory, or foreign jurisdiction, regardless of the residence or domicile of the parties.
Thus, for purposes of ERISA and Internal Revenue Code provisions for which the Secretary of Labor has regulatory authority, the terms "spouse" and "marriage" will be interpreted to include same-sex couples legally married under the laws of any jurisdiction, even if the parties’ state of residence does not recognize the marriage.
Consistent with the related IRS guidance, the Release does not extend this recognition to formal relationships recognized by a state that are not denominated as a "marriage" — such as civil unions or domestic partnerships — even if they provide the same rights as married persons under applicable state law.
The DOL coordinated with the Treasury Department/IRS and the Department of Health & Human Services in issuing this guidance, so it also applies to areas where the DOL has joint regulatory authority, such as HIPAA. The DOL expects to issue future guidance on how this change will impact particular provisions of ERISA.
What To Do
Employers should review their benefit plans and identify provisions that are affected and that should be updated. Summary plan descriptions and election forms should be amended, as necessary, and plan administration should be revised accordingly.
If you have any questions regarding the effect of the Windsor decision, or the DOL guidance provided in Technical Release 2013-04, or any other employee benefits-related questions, please contact one of the authors or your Reed Smith Attorney.
Client Alert 2013-256