A. Most, if not all, employer-sponsored retirement benefit plans have provisions that relate to the employee’s legal spouse. For example, they may guarantee a share of a pension to the spouse or provide a different form of distribution upon death if the beneficiary is a spouse.
If your retirement plan is through a private employer, federal law already requires your retirement plan to provide equal treatment to same-sex spouses. The U.S. Department of Labor and Internal Revenue Service issued rulings and guidance requiring private retirement plans, which are subject to federal law, to extend the full range of spousal protections to married same-sex couples no matter where they live. Specifically, as of June 26, 2013, all retirement plans governed by these federal laws were required – in order to be tax-qualified – to provide all the mandated spousal benefits or consents equally to both same-sex and different-sex spouses. No later than December 31, 2014, all retirement plans governed by these federal laws were required to have amended any non-complying language to conform to the decision in the Windsor case. For more information, see IRS, Application of the Windsor Decision and Post-Windsor Published Guidance to Qualified Retirement Plans FAQs. Check to see if your plan has made any and all required changes to provide equal spousal benefits and act promptly to address it if it has not.
Similarly, for most federal government employees who retire, the Office of Personnel Management (OPM) already requires equal treatment of same-sex spouses.
In contrast, if your retirement plan is through a state or local government employer not covered by the spousal protections in federal law, your plan may not have recognized same-sex spouses prior to the Supreme Court’s marriage ruling. But now, the plan should be required by the Constitution to treat same-sex spouses equally.
If your retirement plan is through a church or other religious organization, whether it may be required to provide benefits to employees’ same-sex spouses depends on whether it is subject to federal law governing retirement benefits and/or federal law prohibiting employment discrimination based on sex. Religiously-affiliated employers cannot claim to be exempt from these requirements in all circumstances. Check the terms of your retirement plan carefully. Contact an attorney experienced in employee benefits law if you have questions about your plan.
If you are married or contemplating marriage, you should review your retirement benefits plan to see what options exist for married retirees and make sure that your designations and elections are accurate, complete and reflect your wishes.
Contact one of our organizations if you encounter disrespect for your marriage in the context of your retirement plan.
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Q. Do I have to be married for any length of time before my spouse and I can get retirement benefits?
A. It depends. For example, a retirement plan may choose not to extend a qualified joint and survivor annuity or qualified pre-retirement survivor annuity if the employee and spouse have not been married for one year prior to the earlier of the employee’s retirement starting date or her/his death. However, your employer’s plan may not have adopted that optional provision. You need to check your plan to see if this one-year duration requirement may apply to you.
If you are being denied benefits due to this type of provision, you might want to advocate with your employer or plan administrator to amend the plan. Some surviving same-sex spouses who, despite long-term relationships, were unable to marry due to marriage bans have successfully persuaded employers to deem their marriages eligible for survivor benefits.
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Q. What if I retired before my marriage was recognized?
A. Depending on the language in any given employer’s retirement plan, spouses of the same sex may well have been covered prior to the date the marriage was recognized. If that’s not the case with your plan, consider asking your employer or plan administrator to recognize your marriage retroactively. The IRS has made clear that retirement plans may be applied or amended to apply to recognize the marriages of same-sex couples prior to the date of the Windsor decision. Under some circumstances, regardless of the language of the plan, your employer or plan administrator may also be required to extend benefits retroactively to same-sex spouses. If spousal rights have been denied under your Plan, it is important not to delay. Contact one our organizations or a lawyer who specializes in employment benefits.
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Q. What if I retired before I was able to marry my same-sex spouse?
A. Many retirement plans have provisions that allow a retiree to change the form of retirement benefit they chose when they retired if they marry post-retirement. Check your plan to see if it has this kind of provision. Be aware that changing the type of retirement benefit you receive (i.e., from a “single” person’s retirement benefit to a Qualified Joint and Survivor Annuity) may reduce the amount you currently receive, and may require you to repay some of the benefits you’ve already received. This can be a significant amount if you have been retired for a while.
If your plan does not presently allow a change post-retirement, consider asking your employer or plan administrator to make an amendment. The IRS has issued guidance that retirement plans may be amended to provide new rights or benefits for participants with same-sex spouses, including allowing participants with same-sex spouses a new chance to choose benefits options available to married employees in light of their previous inability to do so. As an example, the United States Office of Personnel Management (OPM) gave federal retirees two years from the date of the Windsor decision to report that they have a legal marriage that now qualifies for recognition and to make any changes to their retirement benefits based on their recognized marital status.
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Q. What should I do if I have been told that my plan won’t cover my spouse?
A. If your employer or your retirement plan has told you that your spouse will not be treated as different-sex spouses are, it is important to act quickly to preserve your rights. Sometimes the issue can be cleared up with a conversation, but you must follow the specific time limits set forth in the plan to appeal determinations made by your plan. Contact one of our organizations or a lawyer who specializes in employee benefits.
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This guidance is intended to provide general information. It should not be construed as legal advice or a legal opinion on any specific facts or circumstances, and does not create an attorney-client relationship. None of the organizations publishing this information can ensure the information is current or be responsible for any use to which it is put.
No tax advice is intended, and nothing therein should be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code.