On September 18, 2013, the U.S. Department of Labor (“DOL”) issued Technical Release 2013-04 in which the DOL followed the IRS’ approach to same-sex marriage by adopting the “state of celebration rule.” (For more information on the IRS guidance under DOMA, please see our August 30, 2013 blog entry titled “IRS Issues DOMA Guidance”).
Technical Release 2013-04 provides that for the rules and regulations where the DOL has authority (e.g., Title I of ERISA, and certain provisions of the Internal Revenue Code, COBRA, and HIPAA, among others), the term “spouse” will refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term “marriage” will include a same-sex marriage that is legally recognized as a marriage under any state law. For these purposes, the term “state” means any state of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Northern Mariana Islands, any other territory or possession of the United States, and any foreign jurisdiction having the legal authority to sanction marriages.
The DOL reasoned that the state of celebration rule, which recognizes marriages that are valid in the state in which they were celebrated, regardless of the married couple’s state of domicile, provides a uniform rule of recognition that can be applied with certainty by stakeholders, including employers, plan administrators, participants and beneficiaries. The DOL explained that a rule for employee benefit plans based on state of domicile would raise significant challenges for employers that operate or have employees (or former employees) in more than one state or whose employees move to another state while entitled to benefits, resulting in substantial financial and administrative burdens on employers, as well as the administrators of employee benefit plans.
Although Technical Release 2013-04 does not provide an effective date and does not address the issue of retroactivity (similar to the IRS’ DOMA guidance), it does provide that the DOL intends to issue future guidance addressing specific provisions of ERISA and its regulations.