Following the lead of the IRS  in Revenue Ruling 2013-17, the Department of Labor issued DOL Technical Release No. 2013-04 on September 18, 2013 providing that, where the Secretary of Labor has authority to regulate with respect to the limited provisions of ERISA where the term “spouse” is used, “spouse” will be read to refer to any individuals who are lawfully married under any state law, including same-sex spouses, and without regard to whether their state of domicile recognizes same-sex marriage. Thus, for ERISA purposes as well as federal tax purposes, an employee benefit plan participant who marries a person of the same sex in a jurisdiction that recognizes same-sex marriage will continue to be treated as married even if the couple moves to a state that does not recognize same-sex marriage. 

Neither the DOL Technical Release, nor the IRS Revenue Ruling answered the question of the retroactive application of these rulings, although the IRS Revenue Ruling states that future guidance will address retroactivity. (See our earlier article regarding the IRS’ guidance.)