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Mid-Year Plan Amendments Related to Marriages of Same-Sex Couples

Safe harbor 401(k) or 401(m) plans may be amended mid-year to comply with the Supreme Court’s decision in United States v. Windsor and related IRS guidance in Revenue Ruling 2013-17 and Notice 2014-19 (Notice 2014-37). The Windsor decision invalidated Section 3 of the 1996 Defense of Marriage Act (DOMA), which barred married same-sex couples from being treated as married under federal law.

When plan amendments are required

A plan with terms that are inconsistent with Windsor or Revenue Ruling 2013-17 must be amended to comply (Notice 2014-19). For example, a plan must be amended if it defines “spouse” by reference to section 3 of DOMA, or only as a person of the opposite sex. Similarly, a plan must also be amended if a plan sponsor chooses to reflect the outcome of Windsor for periods prior to the date Windsor was decided. Required amendments must generally be adopted 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 (Q&A-8 of Notice 2014-19).

Safe harbor plan rules

A safe harbor 401(k) or 401(m) plan must generally be adopted at the beginning of a plan year and maintained throughout the full 12-month year. Plan amendments to reflect Windsor and related IRS guidance are exceptions to this general rule.

Additional resources

Page Last Reviewed or Updated: 03-Dec-2014