The public discourse concerning same-gender marriage continues to be very heated with passionate advocates from one end of the spectrum to the other. Some argue it is a question of fundamental civil rights, while others believe the final decision should be driven by certain religious beliefs.
To date, ten states have permitted or recognized same-gender marriage; however, when it comes to employee benefit plans, we must look to federal law for direction. The Defense of Marriage Act (DOMA) was signed into law by President Bill Clinton in 1996. Although the Obama Administration recently indicated it would no longer defend DOMA in court, it remains the law of the land until Congress changes it or the Supreme Court overrules it.
Why do we care about DOMA? Because, it defines marriage as “a legal union between one man and one woman as husband and wife” and requires that this definition be used “[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States.”
Qualified plans are governed by ERISA and the Internal Revenue Code, both of which are acts of Congress, and two agencies of the federal government – the IRS and DOL – have primary jurisdiction to enforce those laws. As a result, those responsible for administering retirement plans must apply the one man/one woman definition of marriage, regardless of their personal position on the debate or the laws in their particular states.
Although it is nearly seven years old, this article provides some examples of some of the plan issues and benefit determinations that may be impacted, including QDROs, beneficiary designations and spousal consents.
The plan document may be drafted to recognize an alternate definition of spouse for certain purposes, and many pre-approved plan documents now provide employers with this option. Examples include a definition tied to state law or one that specifically recognizes same-gender relationships such as civil unions or domestic partnerships.
The language must be included in the document in order to act upon it, so it is important to understand what the plan requires. If you are unsure what your plan says, it is worth a call to your attorney or consultant or plan document provider to confirm.
By the way, the Styx reference in the title was just too tempting pass up.
Adam,
You are correct that it is very important to follow what the plan says. If a company is interested in recognizing unions that are not considered marriage under DOMA, most of the same rules that apply to a spouse can be written in to a plan for non-spouse beneficiaries if the trustees choose to include them. This can be all non-spouse beneficiaries or just specific groups such as domestic partners. But it must be put in the plan document.
Andy
Posted by: Andy Pollack (via LinkedIn) | 10 March 2011 at 01:57 PM