New IRS Guidance on Same-Sex Marriages and Retirement Plans Requires Action by Employers

by Bradley Arant Boult Cummings LLP

The Treasury Department and Internal Revenue Service (“IRS”) have issued Notice 2014-9 (the “Notice”) and related Frequently Asked Questions (“FAQs”) providing much anticipated guidance on the application of the Supreme Court’s decision in U.S. v. Windsor and Revenue Ruling 2013-17 to qualified retirement plans. Employers will need to take action this year to ensure that plan documents and operations are consistent with the new guidance.


On June 26, 2013, the Supreme Court’s landmark decision in Windsor invalidated a key provision of the 1996 Defense of Marriage Act that excluded a same-sex partner from the definition of spouse for purposes of federal law. Under the ruling, same-sex couples are to be treated as married for all federal tax purposes. Following the Windsor decision, the IRS issued Revenue Ruling 2013-17, which holds that married same-sex couples are to be 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. Revenue Ruling 2013-17 applied prospectively beginning September 16, 2013, but did not offer any guidance as to the potential retroactive application of Windsor.


The Notice applies to retirement plans that are qualified under Internal Revenue Code (“Code”) Section 401(a), including 401(k) plans, profit-sharing plans, and defined benefit pension plans. The new guidance relates to the rules regarding several important rights of participants’ spouses under such plans, including with respect to qualified joint and survivor annuities, qualified preretirement survivor annuities, spousal consent to designation of a non-spouse beneficiary, required minimum distributions, and qualified domestic relations orders. In general, the Notice affirms that same-sex couples who are legally married under applicable state law without regard to the spouses’ state of residence must be treated in operation as married for these and other purposes under qualified plans. The FAQs further clarify that the Notice applies to 403(b) plans.

Retroactive Application Not Required

In a welcome development, under the Notice, a retirement plan will not be treated as failing to meet the qualification requirements under the Code because it did not treat the same-sex spouse of a participant as a spouse for the purposes described above and otherwise before June 26, 2013. On the other hand, a plan will not lose its qualified status if it is amended to reflect Windsor for some or all purposes as of a date prior to June 26, 2013.

Plan Amendments

Whether a qualified retirement plan must be amended to reflect the outcome of Windsor depends on the terms of the specific plan. A plan that is consistent with Windsor will generally not have to be amended. If a plan’s terms with respect to the requirements of Code Section 401(a) define a marital relationship in a manner that is inconsistent with Windsor (usually, either by including in the definition of “spouse” that he or she must be an individual of the opposite sex or by reference to applicable law in the participant’s state of residence, as opposed to the law of the state of celebration), the plan must be amended to reflect the outcome of Windsor. Additionally, if a plan sponsor chooses to apply some or all rules in a manner consistent with Windsor prior to June 26, 2013, an amendment is required that specifies the purposes and the effective dates.

With respect to defined benefit plans, the Notice and FAQs clarify that an amendment to reflect the outcome of Windsor, effective June 26, 2013, is not treated as an amendment to which certain technical restrictions on increasing plan liabilities apply. However, an amendment reflecting the outcome of Windsor prior to June 26, 2013, is an amendment subject to restrictions on increasing plan liabilities.

Timing of Amendments

Amendments to conform the terms of a plan to the outcome of Windsor or to apply the outcome of Windsor prior to June 26, 2013, must generally be adopted by the later of December 31, 2014, or the otherwise applicable deadline under section 5.05 of Revenue Procedure 2007-44 (which generally requires an interim amendment to be adopted by the later of the plan year in which the change is first effective or the due date of the employer’s tax return for the tax year that includes the date the change is first effective). A required amendment to a governmental plan need not be adopted before the close of the first regular session of the legislative body with the authority to amend the plan that ends after December 31, 2014. A required amendment to a 403(b) plan must be adopted by the yet-to-be announced deadline for the adoption of plan documents that satisfy the written plan requirement under the final 403(b) regulations.


Written by:

Bradley Arant Boult Cummings LLP

Bradley Arant Boult Cummings LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.