On September 18, 2013, the Department of Labor's Employee Benefits Security Administration (EBSA) issued Technical Release 2013-04 (the "Release"), adopting the treatment of same-sex marriages for purposes of ERISA (and for purposes of the Federal Employees' Retirement System) that was recently prescribed for tax purposes by the IRS. See our previous Alert dated September 3, 2013, IRS Answers Residence Question for Same-Sex Spouses, at http://www.fordharrison.com/9568.
Specifically, a couple will be treated as married for all purposes under ERISA if legally married in a state in which same-sex marriage is recognized, and the term "marriage" includes a same-sex marriage that is legally recognized as a marriage under the law of any state, territory or possession of the United States or any foreign jurisdiction that has the legal authority to sanction marriages. This is the case regardless of where the couple resides, even if they reside in a state that does not recognize same-sex marriage. Also, like the IRS position, the Release states that the terms "spouse" and "marriage" will not be treated as including individuals (of the same or opposite sex) who are in a recognized formal relationship under state law that is not denominated a "marriage," e.g., "domestic partnerships" or "civil unions," even if, under state law, those individuals might be afforded the same rights and responsibilities as married persons.
Pointing out the need for uniformity, the Release notes that the Departments of Labor, Treasury, and Health and Human Services (HHS) are charged with jointly administering many of the affected provisions, such as HIPAA; it states that the Department of Labor had coordinated with Treasury and HHS in developing the Release, and that the three agencies are in agreement with the approach described in the Release. Finally, the Release states that EBSA intends to issue further guidance concerning specific provisions of ERISA and its regulations thereunder.
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