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UNITED STATES v. WINDSOR


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Hi, 

Have a terminating plan and I don't believe the plan went through an amendment regarding the UNITED STATES v. WINDSOR Act, now that the plan is terminating will it require an amendment. 

Thanks

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A plan’s governing document might be good-enough without a change.

I’ve seen plan documents from as long ago as the 1970s that did not restrict the word spouse.

If the plan needs no restatement or amendment for any other point, the plan’s sponsor or its advisor might read the current governing document.  If nothing in it improperly narrows the meaning of spouse, there might be nothing that needs a change.

Peter Gulia PC

Fiduciary Guidance Counsel

Philadelphia, Pennsylvania

215-732-1552

Peter@FiduciaryGuidanceCounsel.com

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I'd agree with Peter that it depends on what the plan says - for example if plan terms refer to "spouse" by reference to DOMA or husband/wife.  If you need to amend, and you're planning to file a Form 5310 to get a favorable DL upon termination, this "Note" under the What to File paragraph of the 5310 instructions might be useful:

Note. A terminating plan generally does not have to be restated. However, the Service has the discretion to request copies of any amendments during its review of a terminating plan. A plan that terminates after the effective date of a change in law, but prior to the date that amendments are otherwise required, must be amended to comply with the applicable provisions of law from the date on which such provisions become effective with respect to the plan. The plan must be amended in connection with the plan termination to comply with those provisions of law that become effective with respect to the plan or before the date of plan termination, including any amendments made after the date of termination that were required in order to obtain a favorable DL. See also the instructions to line 3f.

Regarding what amendments might be needed under your plan, see IRS Notice 2014-19 and Notice 2015-86, which were issued following Windsor and Obergefell, respectively.

 

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