Earlier this summer we sent you an Alert concerning the U.S. Supreme Court’s historic ruling (United States v. Windsor) regarding same-sex marriage. This decision declared, as unconstitutional, Section 3 of the federal Defense of Marriage Act, which defined “spouses” and “marriage” for purposes of federal law as including only persons of the opposite sex. Thus, following the Windsor decision, same-sex spouses will now be recognized for purposes of federal law, including, among many others, federal tax law and the Employee Retirement Income Security Act (ERISA).

Windsor Left Many Open Questions -

While the impact of the Supreme Court’s ruling on employee benefit plans and arrangements will be substantial, the Windsor decision, as we noted in our earlier Alert, left many questions unanswered with respect to its impact on such plans and arrangements. The two most fundamental questions are: (i) what state law controls in determining whether a same-sex marriage, and therefore such same-sex partners’ status as “spouses,” will be recognized in applying federal law post-Windsor, and (ii) does, and if so to what extent will, the Windsor decision have retroactive effect? While additional guidance is necessary and will be forthcoming from the various federal agencies having jurisdiction over the many federal laws impacted by marital and spousal status, the Internal Revenue Service and U.S. Treasury Department (collectively, “IRS”) have issued initial guidance on the subject and offered some answers to these and other important questions.