Definition of Spouse & DOMA

[Guest jac]

I have a plan with a definition of spouse as follows:

“Spouse” means an individual to whom a Participant or Beneficiary is married under the law of the state in which the Participant or Beneficiary is domiciled.

As you can see, the definition doesn't include a reference to DOMA. Some of the plans I work with do include a reference to DOMA or federal law in their definitions of Spouse, but certainly not all, and not the plan at issue.

The IRS, as part of its determination filing review, is asking the plan to amend the definition of Spouse to comply with DOMA. Have you seen this before? This is the first time I've had an agent make such a request, and given the several recent court decisions on DOMA (among other reasons), I'd prefer not to amend the definition.

If you've seen this from an IRS agent, I'd appreciate hearing about it and what your response to the IRS was. Thanks.

[QDROphile]

Depends on what "spouse" is used for under the plan. For eample, a requirement to get spouse consent should not be of any concern to the tax requirements.

[Guest jac]

Depends on what "spouse" is used for under the plan. For eample, a requirement to get spouse consent should not be of any concern to the tax requirements.

That's a good point. Thanks.

[Peter Gulia]

If your client’s only purpose is to satisfy an IRS reviewer, consider simply deleting the plan’s definition for spouse.

In the absence of a special definition, the word means what it means in context. For a provision that’s in the plan because a tax-qualification rule requires it, a use of spouse means what it means according to the relevant statute. To the extent that 1 U.S.C. § 7 applies, it affects every Federal statute’s use of spouse.