Same-sex marriage has been in the news lately. The US Supreme Court recently concluded that Sec. 3 of the Defense of Marriage Act is inconsistent with the Fifth Amendment of the US Constitution. This can impact those retirement plans defining spouse based on the DOMA definition. For example, I have heard of a plan defining marriage as consistent with “applicable law”. Just what is applicable law at the moment? The change can affect spousal consent to beneficiary designations, survivor annuity rights, spousal rollover rights, and division of benefits under qualified domestic relations orders. Calculation of minimum required distributions also can be impacted.
For the time being, same-sex spouse status appears to be governed by the law of the state of residence rather than by federal law. Today, 14 states recognize marriage without reference to gender. However, the DOMA decision does not require states to recognize same-sex marriage. Nor does it require a state to recognize the same-sex marriage legally transacted in a different state.
Federal agencies have been directed to issue or modify guidance in order to implement the Court’s decision. We are looking forward to such guidance, since there are plenty of unresolved issues at the moment. Please contact us if you would like to discuss this topic further.
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