On December 9, 2015, the IRS released Notice 2015-86, which contains guidance regarding the application of federal tax law to certain employee benefit plans following the U.S. Supreme Court’s decision in Obergefell v. Hodges, which recognized the constitutional right of same-sex marriage.  With respect to cafeteria plans, the Notice addresses the circumstances under which a mid-year election change would be permitted following a change in the terms or operation of a covered benefit (e.g., a health plan) to permit coverage for same-sex spouses.  For tax qualified retirement plans, the IRS confirmed that the Obergefell decision should not require any mandatory plan design changes because any such changes should already have been implemented as required under previous IRS guidance issued in response to the Supreme Court’s 2013 decision in United States v. Windsor, which invalidated Section 3 of the federal Defense of Marriage Act.  The IRS clarified, however, that in light of the Obergefell decision, plan sponsors may choose to make certain discretionary plan amendments that may provide new rights or benefits to participants with same-sex spouses or to recognize same-sex marriages on a retroactive basis as of a date preceding the Windsor decision.

Notice 2015-86 is available here.