On September 18, 2013, the U.S. Department of Labor (DOL) announced in Technical Release 2013-04 that, following the U.S. Supreme Court’s decision in United States v. Windsor, the terms “spouse” and “marriage” used in Title I of the Employee Retirement Income Security Act of 1974, as amended (ERISA) and the regulations thereunder will include any individual who legally marries a person of the same sex in a state where the marriage is legally valid, regardless of whether the state where the individual is resident recognizes such marriage. Recognizing marriages based on this “state of celebration” rule rather than a “state of residency” rule is the same rule that the U.S. Department of Treasury (Treasury) and Internal Revenue Service (IRS) previously announced, as discussed here.

The Technical Release refers to states, rather than jurisdictions, but it specifies that “state” means any state, U.S. jurisdiction or territory, and any foreign jurisdiction having the legal authority to sanction marriages. Similar to the Treasury and IRS guidance, DOL cited the need for uniformity in federal law and the administration of employee plans as support for its determination, as well as the prior guidance from Treasury and IRS. Also in line with the Treasury and IRS guidance, DOL will not recognize other same-sex unions, such as registered domestic partnerships or civil unions. The Technical Release does not discuss the effective date of this guidance or any retroactive application.