From 29 March 2014 same sex marriages can take place in England and Wales. This may have ramifications for the benefits in your pension scheme, and trustees and employers should be clear on what benefits same sex spouses will receive.
Legislation allowing same sex marriages to take place in England and Wales will come in to force on 13 March 2014. Pension schemes do not need to be amended to provide same sex spouses with the minimum survivors’ benefits as the legislation is overriding in this regard. The legislation will not be overriding for contracted-out schemes and so amendments to scheme rules may be necessary if your scheme provides such benefits.
This is the same as when civil partnerships were first introduced. The overriding effect is to introduce a legal minimum which requires benefits to be the same as opposite sex spouses but only in relation to service accrued by members after 5 December 2005. Contracted-out death benefits are based on accrual from 6 April 1988.
In practice therefore, opposite sex spouses may receive a higher benefit as accrual can extend further back in time beyond 5 December 2005. However this only applies to death benefits which are calculated in relation to length of a members’ pensionable service. Trustees must treat a same sex spouse in the same way as an opposite sex spouse when considering the distribution of lump sums as these are usually calculated as multiples of salary.
The 5 December 2005 limit is currently under review as a potential breach of European law. The result of the review is expected in July 2014.
While pension schemes may not normally need to be amended, trustees and employers should be careful to check the existing rules in relation to civil partnerships. Where a pension scheme previously decided to give civil partners the legal minimum, the protection for same sex spouses would be consistent without an amendment and there would be no distinction between civil partnerships and same sex marriages.
If amendments were previously made to provide a benefit to civil partners in excess of the legal minimum (i.e. for full periods of pensionable service), amendments may be necessary to ensure consistency of treatment. It may also serve as an opportunity for trustees to review the situation as a whole and look to grant a higher level of survivor benefit to same sex spouses and civil partners. Such amendments will require employer consent due to their likely cost implications.
Finally, the contracting-out legislation is not overriding and amendments will be required in relation to GMPs and reference scheme benefits in order to provide benefits for surviving same sex spouses.
There are a number of steps trustees and employers should take:
- Review benefits payable to opposite sex spouses, civil partners and same sex spouses.
- Amend the scheme rules where the scheme is contracted-out.
- Update members as to the position of same sex spouses under the scheme rules and legislation.
- Update member booklets to reflect any decisions taken on benefits for same sex spouses.
- Update nomination of wish forms to include the option of same sex spouses.