DOL Adopts Same-sex Marriage Recognition Rule for ERISA Purposes | Practical Law

DOL Adopts Same-sex Marriage Recognition Rule for ERISA Purposes | Practical Law

The Department of Labor (DOL) has issued Technical Release 2013-04, which provides that, for purposes of Title I of ERISA, its underlying regulations, rulings and other guidance, and the Internal Revenue Code provisions the DOL interprets, the terms "spouse" and "marriage" include individuals in same-sex marriages that are valid in the state where they are entered into, regardless of the married couples' place of domicile.

DOL Adopts Same-sex Marriage Recognition Rule for ERISA Purposes

Practical Law Legal Update 5-542-0885 (Approx. 6 pages)

DOL Adopts Same-sex Marriage Recognition Rule for ERISA Purposes

by Practical Law Employee Benefits & Executive Compensation
Published on 20 Sep 2013 • USA (National/Federal)
The Department of Labor (DOL) has issued Technical Release 2013-04, which provides that, for purposes of Title I of ERISA, its underlying regulations, rulings and other guidance, and the Internal Revenue Code provisions the DOL interprets, the terms "spouse" and "marriage" include individuals in same-sex marriages that are valid in the state where they are entered into, regardless of the married couples' place of domicile.
On September 18, 2013, the DOL issued Technical Release 2013-04, which provides guidance regarding the meaning of the terms "spouse" and "marriage" for purposes of:
  • The regulations, rulings, opinions and exemptions in Title I of ERISA that the DOL has authority to issue.
  • The DOL's regulations at Chapter XXV of Title 29 of the Code of Federal Regulations, which include rules addressing reporting, disclosure, fiduciary, claims procedures, civil penalties and group health plan compliance.
  • Certain Internal Revenue Code (IRC) provisions for which the DOL has interpretive authority (for example, IRC Section 4975, addressing prohibited transaction taxes).
For these purposes, the terms "spouse" and "marriage" include individuals in same-sex marriages that are valid in the state where they are entered into, regardless of the married couple's place of domicile. The Technical Release was accompanied by a related news release. This guidance was necessitated by the US Supreme Court's June 2013 decision in U.S. v. Windsor, which held that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional (see Legal Update, Supreme Court: DOMA Section 3 is Unconstitutional and Proposition 8 Proponents Lack Standing).

DOL Technical Release 2013-04

Under Technical Release 2013-04, the term:
  • "Spouse" refers to any individuals who are lawfully married under any state law, including individuals in a same-sex marriage who were legally married in a state that recognizes same-sex marriage, but who are domiciled in a state that does not recognize the validity of same-sex marriages.
  • "Marriage" includes a same-sex marriage that is legally recognized as a marriage under any state law.
This means that same-sex individuals are considered lawfully married:
  • If they were married in a state whose laws authorize same-sex marriage.
  • Even if the couple later resides in a state that does not recognize same-sex marriage.
For purposes of the Technical Release:
  • "State" means any state in the United States, the District of Columbia, Puerto Rico, the Virgin Islands and any other US territory or possession, and any foreign jurisdiction having the legal authority to sanction marriages.
  • "Spouse" and "marriage" do not include individuals in a non-marital, state-recognized relationship with a person of the opposite or same sex, such as a domestic partnership or a civil union, regardless of whether the individuals in these relationships have the same rights and responsibilities as individuals married under state law.
The DOL's interpretation of Windsor mirrors the position taken by the IRS in Revenue Ruling 2013-17, which recognizes, for federal income tax purposes, a same-sex marriage that is valid in the state of celebration rather than the married couple's state of domicile (see Legal Update, IRS Adopts Same-sex Marriage Recognition Rule).
Also, the DOL's rationale for adopting this rule is substantially similar to that of the IRS in Revenue Ruling 2013-17. The Technical Release explains that a rule based on the state of domicile would have raised substantial challenges for employers that operate or have employees in more than one state, particularly in administering benefits that depend on marital status.

Practical Impact

The terms spouse and marriage are used in several provisions of Title I of ERISA and underlying DOL regulations, for example:
In addition to the general guidance contained in the Technical Release, the DOL intends to issue future rules addressing Windsor's implications for specific provisions of ERISA and its regulations. Last month, in contrast, the DOL announced in DOL Fact Sheet #28F that it would evaluate whether a same-sex couple is married under the Family and Medical Leave Act by looking to the state of the employee's residence (see Legal Update, Labor Department Begins Extension of Federal Benefits to Same-sex Spouses in States Recognizing Gay Marriage).