Recent changes have been made to the Defense of Marriage Act (DOMA) due to the United States V. Windsor Supreme Court decision in June, 2013, affecting the administration of qualified retirement plans. As of September 16, 2013, with guidance issued by the IRS and Department of Labor, plans must be administered such that same-sex couples are treated equally with opposite gender couples if a couple was married in a state where same-sex marriage is legal (“state of celebration”), regardless of where the couple resides. Therefore, all retirement plan provisions that refer to marital status or spousal benefits are to be considered gender-neutral and those benefits and rights previously applicable only to opposite-sex marriages are now applicable to same-sex marriages as well. These include spousal consents, qualified joint and survivor annuities and survivor benefits.

Currently, same-sex marriage is legal in 15 states *, the District of Columbia, certain counties in New Mexico and several Native American tribal jurisdictions, with Illinois to follow in 2014. Further guidance is expected from the IRS, including the timing and nature of plan amendments, the validity of prior beneficiary designations, and retroactive administration requirements. Plan administration may become more complex with a need to validate the marriages, elections and consents. Domestic partnerships and civil unions are not affected by this change in the law as those relationships are not considered legal marriages.

* California, Connecticut, Delaware, Hawaii, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Rhode Island, Vermont and Washington

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