The DOMA Decision and Same-Sex Spousal Benefit Issues – IRS Guidance Provides Administrative Relief

by Reed Smith

On August 29, 2013, the IRS issued Revenue Ruling 2013-17 ("Rev. Rul. 2013-17"), which provides that same-sex couples who enter into marriages in jurisdictions that recognize such marriages will be treated as married for federal tax purposes, regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage.1 Recognizing our increasingly mobile society, the IRS stated that "it was important to have a uniform rule of marriage recognition that could be applied with certainty by the IRS and taxpayers alike for all Federal tax purposes."


As discussed in Client Alert 2013-198, the U.S. Supreme Court issued a landmark decision regarding same-sex marriage June 26, 2013 (U.S. v. Windsor or "Windsor"), striking down section 3 of the Defense of Marriage Act ("DOMA") as unconstitutional because it violates the principles of equal protection. Section 3 of DOMA previously preempted state law and defined "marriage" for purposes of all federal statutes, regulations, rulings, and interpretations as "a legal union between one man and one woman as husband and wife," and "spouse" as "a person of the opposite sex who is a husband or a wife." However, Windsor did not address important practical issues regarding how same-sex marriages would be recognized at the federal level or for employee benefit purposes.

New Guidance

Rev. Rul. 2013-17 clarifies, at least for federal tax purposes, that if individuals enter into a same-sex marriage in a jurisdiction that permits such marriages, then such individuals will be treated as married regardless of where the individuals live. This eliminates numerous administrative headaches for employers who may have employees who live in various jurisdictions or who move.

For employee benefit plan purposes, Rev. Rul. 2013-17 takes effect September 16, 2013, and is generally prospective, but permits the filing of amended or adjusted returns and retroactive claims for refunds or credit of employment tax and income tax in certain circumstances, provided the applicable statute of limitations period has not expired. Further guidance on the retroactive application of same-sex marriage recognition to employee benefits, employee benefit plans, and arrangements is to be provided.

Questions Answered

Rev. Rul. 2013-17 answers many of the questions left unanswered in Windsor for purposes of employee benefit plans, including the following:

  • Federal Taxation of Benefits As a result of Windsor, employers should stop imputing income for same-sex spouses covered under an employer-sponsored health plan.
  • Tax-Qualified Retirement Plans Same-sex spouses must be treated as lawful spouses for purposes of maximum benefit limitations, spousal consent rules, rollovers, death benefits, minimum required distributions, availability of in-service hardship withdrawals, and assignment of benefits under qualified domestic relations orders.
  • Elections Under Cafeteria Plans If an employee made a pre-tax salary-reduction election for health coverage under an Internal Revenue Code section 125 cafeteria plan sponsored by an employer, and also elected to provide health coverage for a same-sex spouse on an after-tax basis, the employer may now treat the after-tax election as a pre-tax election and begin taking pre-tax salary reductions.
  • Domestic Partnerships and Civil Unions For federal tax purposes, the terms "spouse," "husband and wife," "husband," and "wife" do not include individuals (whether of the opposite sex or the same sex) who have entered into a registered domestic partnership, civil union, or other similar formal relationship recognized under state law that is not denominated as a "marriage" under the laws of that state. The term "marriage" also does not include such formal relationships.

What To Do

Employers should review their benefit plans and identify which provisions are affected and need to be updated. Summary plan descriptions and election forms also should be amended, where needed, and plan administration will have to be revised accordingly. Additional communications may need to be sent to employees and former employees (and, depending on guidance on retroactivity, to their same-sex surviving spouses) informing them of the changes to their benefit rights.

1. As of August 1, 2013, only 12 states (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, Vermont and Washington) and the District of Columbia issue marriage licenses to same-sex couples and recognize same-sex marriages entered into in other states. In addition, Minnesota issues marriage licenses to same-sex couples.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Reed Smith | Attorney Advertising

Written by:

Reed Smith

Reed Smith 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.