Department of Labor Publishes Benefits Guidance on Definitions of Spouse and MarriageOn September 19, 2013 by Schnader in schnaderworks.com
On September 18, 2013, the United States Department of Labor (DOL) published Technical Release No. 2013-4, entitled “Guidance to Employee Benefit Plans on the Definition of ‘Spouse’ and ‘Marriage’ Under ERISA and the Supreme Court’s Decision in United States v. Windsor.” In its June 2013 Windsor decision, the Supreme Court declared unconstitutional that part of the Defense of Marriage Act (DOMA) that defined “marriage” as a legal union between one man and one woman as husband and wife, and defined “spouse” as only a person of the opposite sex who is a husband or wife.
Soon after Windsor was decided, President Obama directed a review of all federal statutes affected by the decision, including laws implicating federal benefits, to assure swift implementation of the Court’s ruling. In August, DOL amended its Fact Sheet 28F (available here) to clarify that leave under the Family and Medical Leave Act is available to same-sex spouses who reside in states that recognize same-sex marriage. Then, earlier this month, the Department of Treasury and the Internal Revenue Service published Revenue Ruling No. 2013-17 (here) that adopted a different approach from the DOL’s. The revenue ruling declares that (i) the federal tax laws will recognize a marriage of same-sex individuals that is validly conducted in a state whose laws authorize the marriage of two persons of the same sex, and (ii) this will be the case even if the state in which the couple is domiciled does not recognize the validity of same-sex marriages.
In the face of these conflicting interpretations – state of domicile vs. state where marriage conducted – Technical Release No. 2013-4 departed from the DOL’s earlier focus on domicile under the FMLA, declaring that under those statutes and regulations for which the DOL has authority
- “spouse” will be read to 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; and similarly
- “marriage” will be read to include a same-sex marriage that is legally recognized as a marriage under any state law; however
- neither term includes persons of the same or opposite sex who are in a formal relationship recognized by a state that is not deemed a marriage under state law (e.g., domestic partnership or civil union), regardless of whether persons in those relationships have the same rights and obligations as persons who are married under state law.
DOL justified the position taken in Technical Release No. 2013-4 on various grounds related to burden, confusion and likely rate of error were recognition of the marriage by the state of domicile chosen to govern same-sex marriage issues arising under employee benefits plans. The release more specifically cited particular challenges for multistate employers, particularly those with mobile workers; the burdens imposed on administrators in continuously tracking marriage status and gender of spouse as well as the domiciles of employees and former employees; the need to retrain benefits specialists and rework systems; the consequences of delays that would be inevitable because of all of the moving parts referred to above; and, importantly, the interconnectedness of the DOL, Treasury/IRS and the Department of Health and Human Services in administering laws such as ERISA and HIPAA, requiring uniformity where possible. As to the latter point, the technical release referred to consultations and agreement among the agencies having connected responsibilities in developing the position announced by the DOL – a position that is in harmony with IRS Revenue Ruling No. 2013-17, published just two weeks ago.
As questions develop on this rapidly developing subject, contact your Schnader lawyer or the author for the latest developments.