As stated by the DOL:
In general, where the Secretary of Labor has authority to
issue regulations, rulings, opinions, and exemptions in title I of ERISA and
the Internal Revenue Code, as well as in the Department's regulations at
chapter XXV of Title 29 of the Code of Federal Regulations, the term
"spouse" will be read to refer to any individuals who are lawfully
married under any state law, including individuals married to a person of the
same sex who were legally married in a state that recognizes such marriages,
but who are domiciled in a state that does not recognize such marriages.
However, for those couples who have avoided walking down the aisle or into
the justice of the peace, there will be no similar federal recognition of their
unions:
The terms "spouse" and "marriage,"
however, do not include individuals in a formal relationship recognized by a
state that is not denominated a marriage under state law, such as a domestic
partnership or a civil union, regardless of whether the individuals who are in
these relationships have the same rights and responsibilities as those
individuals who are married under state law. The foregoing sentence applies to
individuals who are in these relationships with an individual of the opposite
sex or same sex.
The DOL favored a uniform approach to recognizing marriages
than to a rule where the definition of “marriage” and “spouse” varied depending
on where the individual lives or works.
For instance, what would an employer do with an employee whose marriage
was legal in the state where s/he lived, but not where s/he worked?
A
rule that recognizes marriages that are valid in the state in which they were
celebrated, regardless of the married couple's state of domicile, provides a
uniform rule of recognition that can be applied with certainty by stakeholders,
including employers, plan administrators, participants, and beneficiaries.
A
rule for employee benefit plans based on state of domicile would raise
significant challenges for employers that operate or have employees (or former
employees) in more than one state or whose employees move to another state
while entitled to benefits. Furthermore, substantial financial and
administrative burdens would be placed on those employers, as well as the
administrators of employee benefit plans. For example, the need for and
validity of spousal elections, consents, and notices could change each time an
employee, former employee, or spouse moved to a state with different marriage
recognition rules. To administer employee benefit plans, employers (or plan
administrators) would need to inquire whether each employee receiving plan
benefits was married and, if so, whether the employee's spouse was the same sex
or opposite sex from the employee. In addition, the employers or plan
administrators would need to continually track the state of domicile of all
same-sex married employees and former employees and their spouses. For all of
these reasons, plan administration would grow increasingly complex,
administrators of employee benefit plans would have to be retrained, and
systems reworked, to comply with an unprecedented and complex system that
divides married employees according to their sexual orientation. In many cases,
the tracking of employee and spouse domiciles would be less than perfectly
accurate or timely and would result in errors or delays.
Such
a system would be burdensome for employers and would likely result in errors,
confusion, and inconsistency for employers, individual employees, and the
government. In addition, given the interconnectedness of statutory provisions
affecting employee benefit plans, recognition of marriage based on domicile
could prevent qualification for tax exemption, lead to loss of vested rights if
spouses move, and complicate benefits determinations if spouses live in
different states. All of these problems are avoided by the adoption of a rule
that recognizes marriages that are valid in the state in which they were
celebrated. That approach is consistent with the core intent underlying ERISA
of promoting uniform requirements for employee benefit plans. In addition,
Congress requires that the Department, the Department of Treasury/Internal Revenue
Service (IRS) and the Department of Health and Human Services (HHS) coordinate
policies with respect to the Health Insurance Portability and Accountability
Act (HIPAA), which has parallel provisions in ERISA, the Code and the Public
Health Service Act. HIPAA § 104. The Departments operate under a Memorandum of
Understanding that implements section 104 of HIPAA, and subsequent amendments,
and provides that requirements over which two or more Secretaries have
responsibility (''shared provisions'') must be administered so as to have the
same effect at all times. HIPAA section 104 also requires the coordination of
policies relating to enforcing the shared provisions in order to avoid
duplication of enforcement efforts and to assign priorities in enforcement. Congress
also provided that, whenever the Departments of Treasury and Labor are required
to carry out provisions relating to the same subject matter under ERISA, they
shall consult with each other in order to, among other things, reduce
conflicting requirements. ERISA § 3004(a); 29 U.S.C. § 1204(a). The Department
has coordinated with Treasury/IRS and HHS in developing this Technical Release,
and agreed with those agencies that recognition of "spouses" and
"marriages" based on the validity of the marriage in the state of
celebration, rather than based on the married couple's state of domicile,
promotes uniformity in administration of employee benefit plans and affords the
most protection to same-sex couples.
