ASPPA sent an open letter on the subject to the Employee Benefits Security Administration (EBSA), a Department of Labor (DOL) agency tasked with supporting retirement plan participants and applying the Employee Retirement Income Security Act (ERISA). EBSA first expanded its definition of “spouse” to include legally married, same-gender couples for ERISA-covered plans in mid-September.
EBSA officials made the change in response to the Supreme Court’s Windsor decision handed down this summer. That ruling, in part, struck down the Defense of Marriage Act, which limited the federal government’s interpretation of “marriage” and “spouse” to apply only to heterosexual unions.
Along with the definition change, EBSA pledged to develop and release fuller guidance on specific provisions of ERISA for same-gender married couples.
In ASPPA’s letter, Ronald Triche, assistant general counsel and director of government affairs for ASPPA, makes a number of recommendations on what should be included in the forthcoming guidance.
Specifically, ASPPA recommends the following:
- EBSA should deem plan distributions under pre-Windsor rules to be compliant in both form and operation with the plan document and ERISA;
- Plan administrators should not be required to notify participants and spouses of new rules and only modify administrative forms where there is any gender-specific spousal reference on a going-forward basis;
- Participants should have a duty to notify plan administrators about their same-gender spouses;
- Exemptions should be granted for pre-Windsor prohibited transactions between a plan and a now-recognized same-gender spouse;
- EBSA should publish model language for summary plan descriptions and summaries of material modifications to give notice to participants about the effect of the Windsor decision; and
- DOL should grant relief from any refiling requirements and related penalties for plans that used an incorrect form for a pre-Windsor Form 5500 filing.
- Triche cautions that incorporating the recommendations into EBSA guidance is essential to minimize disruption and uncertainty about the existence of same-gender spouses in ERISA plans.
A copy of the letter, including in-depth technical recommendations, is available here.
ASPPA is a national organization of more than 16,000 retirement plan and benefits professionals that serves as an educator and advocate for the employer-based retirement system.