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Rules Governing Practice before IRS

Treatment of Marriages of Same-Sex Couples for Retirement Plan Purposes

Notice 2014-19 provides guidance on how qualified retirement plans should treat the marriages of same-sex couples following the Supreme Court’s decision in United States v. Windsor. 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.

Notice 2014-19:

  • gives examples of Code requirements under which the marital status of the participants is relevant to the payment of benefits,
  • provides guidance on how to satisfy those requirements in light of Windsor and Revenue Ruling 2013-17, and
  • describes when retirement plans must be amended to comply with Windsor, Revenue Ruling 2013-17, and Notice 2014-19

Recognition of marriages of same-sex couples for tax purposes

Following the Windsor decision, the IRS issued Revenue Ruling 2013-17, which holds that married same-sex couples are now 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. Notice 2014-19 gives additional guidance on how qualified retirement plans should treat the marriages of same-sex couples.

Plan amendments required with respect to plan provisions inconsistent with Windsor

  • If its terms are inconsistent with Windsor or Revenue Ruling 2013-17, a retirement plan must have been amended to comply with Windsor and Revenue Ruling 2013-17. 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.
  • Not all plans had to be amended in order to be in compliance. An amendment generally was not required if a plan’s terms were not inconsistent with Windsor or with Revenue Ruling 2013-17.
  • Required amendments had to be adopted by the later of December 31, 2014, or the applicable date under the IRS’ general amendment guidance for qualified retirement plans, formerly Revenue Procedure 2007-44.

Optional amendments

  • Plan sponsors may also, but are not required to, reflect the outcome of Windsor for periods prior to the date Windsor was decided (June 23, 2016).
  • In such a case, a plan amendment is required.
  • Such optional amendment must be adopted by the later of December 31, 2014, or the applicable date under Revenue Procedure 2007-44 or, as of 1/1/17, Revenue Procedure 2016-37 (see section 8.02)..

FAQs for more information

See the FAQs on the treatment of same-sex marriages for additional guidance, including:

  • beneficiary designations in profit-sharing plans after Windsor,
  • amendments that reflect the outcome of Windsor for periods before the decision was issued, and
  • application of the outcome of Windsor to 403(b) plans.

Additional resources