Not All Retirement Plans Must Be Amended for Windsor

IRS Notice 2014-19 provides further instruction for qualified retirement plans about the implications of the U.S. Supreme Court’s decision in United States v. Windsor. Specifically, the notice:

• Gives examples of Internal Revenue Code requirements under which the marital status of the participants is relevant to the payment of benefits;
• Provides guidance about how to satisfy those requirements in light of Windsorand Revenue Ruling 2013-17; and
• Describes when retirement plans must be amended to comply with Windsor, Revenue Ruling 2013-17, and IRS Notice 2014-19.

After the Windsor decision, the IRS issued Revenue Ruling 2013-17 (see “Same-Sex Marriages Recognized for Tax Purposes”), which says married same-gender couples are treated as married for all federal tax purposes where marriage is a factor, if the couple is lawfully married under the laws of: one of the 50 states; the District of Columbia; a U.S. territory; or a foreign jurisdiction. The new Notice 2014-19 gives additional guidance about how qualified retirement plans should treat the marriages of same-sex couples.

Notice 2014-19 calls for a retirement plan to be amended if its plan provisions are inconsistent with the Windsor decision. For instance, if its terms are inconsistent with either Windsor or Revenue Ruling 2013-17, a plan must be amended if it defines “spouse” by reference to Section 3 of Defense of Marriage Act (DOMA), or only as a person of the opposite sex.

According to the IRS, not all plans need to be amended in order to be in compliance. An amendment generally is not required if a plan’s terms are not inconsistent with Windsor or with Revenue Ruling 2013-17.

The IRS notes in the new notice that where amendments are required, plan must adopt them by the later of December 31, 2014, or the applicable date under the IRS’ general amendment guidance for qualified retirement plans, Revenue Procedure 2007-44.

A copy of IRS Notice 2014-19 can be downloaded here.