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Retirement plans may need to be amended after DOMA decision

Q&A with Brandon Long

published in The Oklahoman | April 9, 2014

Months after the U.S. Supreme Court struck down a major section of the Defense of Marriage Act as being unconstitutional, the Internal Revenue Service issued a revenue ruling stating that all same-sex marriages that were validly entered into in a state whose laws authorized the marriage would be recognized for federal tax purposes, regardless of where the couple currently resided. Just last week, the IRS issued further guidance establishing a deadline of December 31, 2014, for employers to amend their qualified retirement plan documents, if necessary, to comply with the ruling.

Brandon Long, an employee benefits lawyer with McAfee & Taft, was featured in a Q&A with The Oklahoman about what this additional guidance means for Oklahoma employers.

“Every Oklahoma employer that sponsors a qualified retirement plan for its employees should review the terms of the plan to see if the plan is consistent with Windsor. For example, if the plan defines the term ‘spouse’ as between two people of the opposite gender, the plan would need to be amended to reflect the changes brought about because of Windsor.”

He noted that even though employers have until the end of the year to amend their plan documents, the operations of the plan must recognize valid same-sex marriages from other states retroactively as of September 16, 2013, the date the initial IRS guidance went into effect.

Another federal agency, the Department of Health and Human Services Centers for Medicare & Medicaid Services (CMS) has also issued guidance resulting from the United States v. Windsor ruling. The new CMS guidance, issued on March 14, 2014, requires health insurance issuers that offer non-grandfathered group or individual health insurance coverage to also offer the plan sponsor, or individual in the individual market, the option to cover same-sex spouses on the same terms and conditions as opposite-sex spouses. According to Long, the guidance does not require private-sector employers to offer coverage, and the guidance does not apply to employers who sponsor self-funded plans.