The Treasury Department recently issued Notice 2014-19 and associated FAQ guidance regarding the status of same-sex spouses under qualified retirement plans. The Notice states that, for tax qualification purposes, a plan is not required to recognize a valid marriage of a same-sex couple prior to June 26, 2013, i.e., the date the Supreme Court's decision inU.S. v. Windsor invalidated certain provisions of the federal Defense of Marriage Act.

Moreover, pursuant to IRS Revenue Ruling 2013-17, a plan need not recognize a valid marriage of a same-sex couple prior to September 16, 2013, if the couple resides in a state that does not recognize same-sex marriage.

Plan Amendment Deadlines

The Notice further states that calendar year plans containing terms that are inconsistent with the Windsor ruling or with Revenue Ruling 2013-17 must generally be amended by December 31, 2014. In separate guidance (Notice 2014-37), the IRS clarified that a safe harbor 401(k) plan may adopt an otherwise impermissible mid-year amendment in order to comply with this requirement.

Analysis and Next Steps

The Windsor case and Revenue Ruling 2013-17 have multiple applications to qualified retirement plans. For example, because ofWindsor, a plan participant's same-sex spouse is the automatic beneficiary for purposes of the "qualified joint and survivor annuity" rules and therefore must consent to the participant's designation of another death beneficiary.

The new guidance clarifies that a plan that failed, prior to the dates listed above, to treat a same-sex spouse as the automatic death beneficiary is not in violation of the IRS tax qualification requirements. However, a plan must treat the same-sex spouse as the automatic death beneficiary of a participant who dies after the dates listed above, regardless of whether an alternate beneficiary designation has been filed (unless the same-sex spouse consented to the alternate beneficiary designation).

Department of Labor Position

Note, however, that the Notice applies only to the requirements of the Internal Revenue Code, and not Title I of ERISA. The Department of Labor has not yet issued guidance on the retroactive application, if any, of the Windsor decision under Title I of ERISA. In fact, one court has already applied the Windsor decision retroactively in a suit for benefits. See "First Post-Supreme Court DOMA Case Rules in Favor of Same-Sex Spouse" from August 13, 2013. Therefore, maintaining the qualified status of a plan under the new guidance may not be sufficient to protect the plan against a same-sex spouse's claim for benefits arising before the IRS' application of these new rules.

Employers should begin reviewing and amending their qualified retirement plans where necessary to account for same-sex spouses. Plans should also update their beneficiary designation and benefit election forms. You may wish to consult with Schiff Hardin employee benefits counsel before implementing policy, procedural, operational or plan changes that may be required.