September 23, 2013
The United States Department of Labor is charged with the administration of the
Employee Retirement Income Security Act ("ERISA"), the federal statute that regulates most private retirement plans. Almost all of these plans offer benefits not only to employees, but also to their spouses. The Department therefore faces the same post-Windsor issue as other federal agencies: In determining whether a person is an employee's spouse, which state's law controls?
The Department's answer is found in Department of Labor Technical Release No. 2013-04. That release provides:
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.
Similarly, the term "marriage" will be read to include a same-sex marriage that is legally recognized as a marriage under any state law.
Dep't of Labor (Sept. 18, 2013), http://www.dol.gov/ebsa/newsroom/tr13-04.html (emphasis added) (footnote omitted) (paragraph break added). Thus, the Department has adopted the same rule as the Internal Revenue Service ("IRS"): It will determine the validity of the marriage by the law of the state in which the marriage was celebrated.
The release explains the reasons for the rule:
This is the most natural reading of ["spouse" and "marriage"]; it is consistent with Windsor, in which the plaintiff was seeking tax benefits under a statute that used the term
"spouse"; and a narrower interpretation would not further the purposes of the relevant statutes and regulations.
A rule that recognizes marriages that are valid in the state in which they were elebrated, 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. . . .
Such a system would be burdensome for employers and would likely result in errors, confusion, and inconsistency for employers, individual employees, and the government. . . . 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.
Thus, the fundamental basis for the ruling is ease of administration. It would simply be too difficult for plan administrators to apply a definition of "spouse" or "marriage" that looks to the domicile of the parties.
Like the IRS, the Department of Labor stresses that a civil union is not a marriage:
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.
Clearly, the strong trend in applying Windsor at the agency level is to look to the law of the state in which the marriage is celebrated, for fear that any other rule would be unduly difficult to apply.