Federal Agencies Publish Guidance Regarding Treatment of Same-Sex Marriage

In light of the recent US Supreme Court decision in US v Windsor striking down provisions of the Defense of Marriage Act (DOMA), President Obama directed all federal agencies to update regulations and other published guidance, in order to address the fact that DOMA no longer prohibits federal recognition of same-sex marriage.

This week, the IRS-issued Revenue Ruling 2013-17 took effect, addressing how such marriages will be treated for tax purposes. In short, the IRS has decided to use what is known as the “state of celebration” rule. Under this rule, the IRS will consider a person to be married if the individual entered into a same-sex marriage in a state that recognizes such marriages. his is true regardless of whether the person actually resides in a state that recognizes or authorizes same-sex marriage.

Wednesday, September 18, the US Department of Labor released Technical Release 2013-04, in which the DOL also adopted this “state of celebration” rule for purposes of defining the terms “spouse” and “marriage” under employee benefit plans. Again, under this rule, a person is considered a spouse, for such purposes, if a marriage was celebrated in a state that recognizes same-sex marriage regardless of where the spouses actually reside.

This is in contrast to the “state of residency” rule, which applies in some other contexts, such as the FMLA. According to this rule, a person can be considered a “spouse” only if the person resides in a state that recognizes the marriage.

Employers should be aware, then, that these and other new federal guidelines will impact the application of various employer policies.

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