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The Windsor decision may require sponsors to amend their qualified retirement plan documents.

Same-Sex Marriage Ruling May Require Amendments to Qualified Retirement Plans

  • Denise Falbo
  • 12/9/2014

The U.S. Supreme Court’s 2013 landmark decision in US v. Windsor, declaring the Defense of Marriage Act (DOMA) unconstitutional, cleared the way for extending federal rights, privileges, and benefits to married, same-sex couples even if the state where they live does not recognize their union.

Qualified retirement plans contain several special rules with respect to married participants, which may be affected by the Windsor decision. Earlier this year, the IRS provided additional guidance on the application of the ruling to qualified retirement plans. If amendments to a plan are required, they must generally be adopted no later than December 31, 2014. While 403(b) plans must operate in accordance with the Windsor decision as well, they are not subject to the December 31, 2014, amendment deadline. Question nine of the IRS guidance covers special rules that apply to defined benefit plans.

Definition of marital relationship

Whether a plan must be amended to comply with the U.S. Supreme Court’s decision depends on certain terms in each specific plan -- in particular, how “marriage” and “spouse” are defined. If a plan’s terms define a marital relationship by reference to Section 3 of DOMA or are inconsistent with the outcome of Windsor, then an amendment to the plan is required. Additional clarifying amendments may be desired, but are optional.

Your plan may be amended retroactively to a period before June 26, 2013, to reflect the outcome of Windsor, provided the amendment is not discriminatory in nature. For example, a retroactive amendment could provide participants with a new opportunity to elect a qualified joint and survivor annuity to make up for benefits that were not previously available.

In addition to plan amendments, employee documents such as enrollment kits, written policies, beneficiary forms, and summary plan descriptions should be reviewed to determine if they require updating.

Regardless of whether a plan must be formally amended, a qualified retirement plan must be operating in accordance with the Windsor decision.

How we can help

It is important that your qualified plan remains in compliance with this law. CliftonLarsonAllen professionals can work with you to understand the characteristics of your plan and the adjustments you may need to make.