Definition of spouse as spouse in an opposite sex marriage

[Guest Do]

Has anyone seen a plan document that defines spouse? If so, how has it been defined? Does anyone think it's a good idea to define it?

[Belgarath]

Every document that I've seen, at leat that I can remember, that has been drafted in the last 10 years or so, defines the term "spouse." They don't all define it the same. Some define it purely under the "Laws of the United States," some refer specifically to Title 1, Section 7 of the United States Code, some refer to state law (while some do not,) etc...

There are also references to former spouses under a QDRO, etc..

So yes, I would say that it is a good idea. Mandatory, really, for all practical purposes, in my non-legal opinion. I'd be surprised if you founds docs that don't define it, but probably there are some.

[Guest Do]

Thanks Belgarath. My company plan document doesn't define spouse (and we're a large 50,000 participant plan). I think we need to define it and coordinate with our other plans that are not insurance based.

[mbozek]

There are many plans that do not define the term spouse or define it in gerneric terms such as the legal spouse of the participant under state law. This is especially prevalent in prototype plans. In plans that do not define spouse the plan can be interpreted with reference to the definition of spouse under the state law designated in the plan. Individually designed plans can define spouse as a member of the opposite sex than the participant to avoid paying benefits to same sex partners of a participant.

[Kirk Maldonado]

I think that people need to read the Defense of Marriage Act.

[Brian Gallagher]

Oddly enough, our prototype (written by Corbel) doesn't define "spouse".

[mbozek]

Prototype plans do not define spouse because the IRS LRMs do not require that the spouse be defined in order to be approved by the IRS and most p'type sponsors do not know how to define spouse in the absence of any IRS regulation so no definition is included. Individual plan sponsors pay attorneys to design plans with definitions of plan terms.

[Guest Jackc]

Prototype plans do not define spouse because the IRS LRMs do not require that the spouse be defined in order to be approved by the IRS and most p'type sponsors do not know how to define spouse in the absence of any IRS regulation so no definition is included. Individual plan sponsors pay attorneys to design plans with definitions of plan terms.

In Oregon, same sex marriage is legal, as well a Mass., so the issue of a same-sex QDRO will surely come up in the future and if the spouse needs to be defined, it should include language for same sex couples, otherwise it would be discriminatory. I feel that The Defense of Marriage Act is discriminatory and unconstitutional. After all, we live in the United States of America, where there should be justice and freedom for all.

[mbozek]

The IRS recently issued a notice stating that same sex couples cannot file joint income tax returns because DOMA limits the term spouse to members of the opposite sex . Unless the courts decide that the language in 1 USC 7 requiring that that the term spouse under any federal law be a member of the opposite sex is unconstitutional there can be no QDROs for same sex couples.

[Guest mkimball]

Don't forget, ERISA pre-empts state law, so until ERISA is amended, there is no recognition of same sex marriage.

[Guest Jackc]

Thanks for the additional info regarding the IRS/DOMA limits/ERISA. I kind of thought that would be the case. It should be interesting to see what the future brings and if any of these laws will be changed/updated.

[david rigby]

Don't forget, ERISA pre-empts state law, so until ERISA is amended, there is no recognition of same sex marriage.

Mighty strongly worded. Don't forget the 10th amendment to the Constitution.

Perhaps we can say "... for any purposes under federal law."