In DOL Technical Release 2013-04, the DOL clarified that, for purposes of ERISA and certain Internal Revenue Code provisions that the DOL interprets, the term "spouse" will include any individuals who are legally married under any state law, including individuals married to a person of the same sex who are legally married in a state that recognizes such marriage, even if such individuals are domiciled in a state that does not recognize same-sex marriages (e.g., a same-sex couple married in MA who live in VA).  While the DOL release focused on marriage in a state, it later clarified that, for purposes of the guidance, the term state includes, among others, DC, Puerto Rico, the Virgin Islands, as well as any foreign jurisdiction having the legal authority to sanction marriages (e.g., Canada, Netherlands).   

The DOL stressed that a definition of marriage based on the state of domicile would raise significant challenges for employers with employees in more than one state or with employees who moved from one state to another.  This would require plan administrators or employers to inquire whether employees were married and, if so whether the employee's spouse was the same or opposite sex.  Plan administrators would then have to track the state of domicile for these employees.  Employers and plan administrators would have to spend valuable time retraining employees and reworking internal systems so that employees could be divided and tracked according to nothing more than their sexual orientation.  The DOL stressed the importance of uniform laws that can be applied with certainty by employers, plan administrators, participants and beneficiaries.  In light of the underlying purpose of ERISA to promote uniform administration of employee benefit plans, the DOL concluded that a state-of-celebration definition is the only acceptable definition of marriage for ERISA purposes.