Same-sex Spouses Get Equal Treatment under ERISA, says DOL

September 30, 2013 | Blog, Family Law News

Icon for author Brian Vertz Brian Vertz

Same-sex couples will be treated as equal to other married couples under the law that governs health insurance and retirement benefits for private employers.  The U.S. Department of Labor recently issued Technical Release 2013-04 (September 18, 2013), which provides:

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. . . . The President has directed the Attorney General to work with other members of the Cabinet to review all relevant federal statutes to ensure the Supreme Court’s decision, including its implications for federal benefits and obligations, is implemented swiftly and smoothly. Following consultation with the Department of Justice, the Department of the Treasury and other appropriate federal executive agencies, the Department of Labor (Department) is issuing this Technical Release to provide guidance to employee benefit plans, plan sponsors, plan fiduciaries, and plan participants and beneficiaries on the meaning of “spouse” and “marriage” as these terms appear in the provisions of the Employee Retirement Income Security Act of 1974 (ERISA), and the Internal Revenue Code that the Department interprets.

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, … 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. This is the most natural reading of those terms; it is consistent with Windsor, in which the plaintiff was seeking tax benefits under a statute that used the term “spouse”; and a narrower interpretation would not further the purposes of the relevant statutes and regulations.

Like the IRS, the Dept. of Labor has adopted the “state of celebration” principle, which recognizes any marriage legally performed even if the spouses reside in a state where their marriage is not recognized. The DOL will not, however, recognize civil unions or domestic partnership registrations.

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that governs retirement and health benefit plans in private industry. ERISA does not require any employer to establish a retirement plan or extend insurance benefits to same-sex couples. It only requires that those who do provide those benefits to meet certain minimum standards. ERISA covers retirement, health, COBRA, and other benefit plans (including employer-sponsored life and disability insurance coverage).

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