Your Retirement Plan Must Recognize Same-Sex Spouses – Timeline for Compliance

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By Stacey L. Stewart, Esq.

McKenna Long & Aldridge LLP, Atlanta, GA 

The IRS has provided much needed guidance on how to apply the requirement to recognize same-sex spouses for qualified retirement plan purposes. This requirement stems from the U.S. Supreme Court's Windsor ruling which struck down the portion of the Defense of Marriage Act (DOMA) that provided that only opposite sex marriages would be recognized for federal law purposes. Notice 2014-19, along with related (FAQs), now resolve confusion about retroactive application of the requirement and amendment of plans to reflect the new rules. This alert highlights the key points in the new guidance for plan sponsors.

Regardless of whether your plan needs to be amended, you should clarify administrative procedures according to a timeline that shows how your plan handled same-sex spouses before and after the Windsor ruling. The timeline should specifically address the period between June 26, 2013 (the date of the Windsor ruling) and September 16, 2013 (the effective date for the IRS recognition).


  •   Before June 26, 2013 - Your plan is not required to recognize same-sex spouses before the date of the Windsor ruling. You can choose to recognize same-sex spouses for some or all purposes under your plan before this date, but it may be difficult to do so retroactively and could trigger unintended consequences. For example, what if your plan paid out a distribution to a non-spouse beneficiary after the effective date? Arguably the same-sex spouse now has a claim for benefits under your plan that have already been paid to another. You should consult with your legal advisors and third-party administrator before electing to retroactively recognize same-sex spouses.
  •   June 26, 2013 to September 15, 2013 - Your plan must recognize same-sex spouses effective June 26, 2013 (the date of the Windsor ruling), but it can apply either the "place of domicile rule" or the "place of celebration rule" (adopted by the IRS effective September 16, 2013) to determine the validity of a same-sex marriage. Under the "place of domicile rule," an individual is considered married if he or she lives in a state where such marriage was recognized as legally valid. Under the "place of celebration rule" an individual is considered married if the marriage was validly entered into in any state or foreign country, regardless of his/her current state of residence.
  •   September 16, 2013 and Later - Your plan must recognize same-sex spouses based on the place of celebration rule adopted by the IRS in Rev. Rul. 2013-17. 

Plan Amendment

An amendment is only required if your plan defines "spouse" by reference to DOMA, otherwise specifies that a spouse is an individual of the opposite-sex, or contains provisions that are inconsistent with the Windsor ruling. However, to avoid confusion and document your compliance with the rules, you may want to amend your plan to set forth how you have and will apply the same-sex spouse rules in accordance with the above timeline.

Your deadline to adopt any required amendment is December 31, 2014, for most single-employer plans other than 403(b) plans. The deadline for 403(b) plans is unknown, but will likely not be before the end of 2015.

For more information, in the Tax Management Portfolios, see Finston and Jewett, 351 T.M., Plan Qualification - Pension and Profit Sharing Plans, Bosley and Hutzelman, 370 T.M., Qualified Plans - Taxation and Distributions, and in Tax Practice Series, see ¶5540, Obtaining IRS Approval for Qualified Plans, ¶5520, Plan Qualification Requirements.

© 2014 McKenna Long & Aldridge LLP

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