IRS Issues Guidance on Same-Sex Marriage for Retirement Plans

Today, the IRS issued Notice 2014-19, which contains long awaited guidance on the application of the Supreme Court’s decision in United States v. Windsor.  The Windsor case found section 3 of the Defense of Marriage Act (DOMA) unconstitutional.  Sponsors of qualified retirement plans have been awaiting this guidance to determine how to apply the Windsor decision to the administration of qualified retirement plans.

In today’s guidance, the IRS stated that if a retirement plan is inconsistent with the Windsor decision, it must be amended by the later of (1) December 31, 2014 or (2) the applicable due date pursuant to section 5.05 of Rev. Proc. 2007-44.  For example, if a retirement plan contains a definition of “spouse” that requires a spouse to be a person of the opposite sex, a plan amendment is required.  If the retirement plan’s terms are not inconsistent with the Windsor decision, a plan amendment may not be required (e.g., “spouse” is defined as a participant’s spouse under Federal law).  In light of this guidance, a retirement plan sponsor may wish to review the terms of its plan to determine whether a plan amendment is needed.

The guidance also provides that a retirement plan will not be treated as failing to comply with Section 401(a) of the Code simply because it (1) did not recognize a same-sex spouse of a participant prior to June 26, 2013 or (2) only recognized the same-sex spouse of a participant if the participant was domiciled in a state that recognized same-sex marriages prior to September 16, 2013.

The full text of Notice 2014-19 is available here.