DOMA’s partial invalidation in Windsor v. United States raised uncertainty about how benefit plans and arrangements should treat same-sex married couples. Fortunately, the Department of Labor (DOL) recently issued guidance that should help ERISA plan administrators untangle the Windsor knot.
Like the Treasury and the Internal Revenue Service in Revenue Ruling 2013-17, the DOL’s Technical Release No. 2013-04 clarifies that the DOL will take a “state of celebration” approach in interpreting the terms “married” and “spouse” in ERISA, the regulations thereunder, and the provisions of the Internal Revenue Code that the DOL interprets. Further, individuals in non-marital legal unions (such as domestic partnerships and civil unions) are not “married” or “spouses,” even if state law grants them all rights and responsibilities of marriage other than the name.
This DOL guidance does not appear to affect the DOL’s previously articulated standard under Family and Medical Leave Act (FMLA) which refers to the law of the state where the employee resides to determine spousal status. See our Stay Current publication on August 30, 2013, IRS and Treasury Apply “State of Celebration” Rule for Same-Sex Marriage, for a discussion of the differing standard under the FMLA and COBRA-related issues in connection with same.
The DOL notes that it plans to issue further guidance addressing specific provisions of ERISA and its regulations.