Church and Opposite Sex Spouse

Can a non-electing church plan define spouse to only include an opposite sex spouse? I saw an older post on this topic. My research keeps taking me down different roads.

No. We have a number of those clients and they all were required to amend for the Windsor decision.

For a church plan that has not elected to be ERISA-governed:

A church’s plan-design preferences about how to define a spouse might vary with each provision, following whether the provision:

subsidizes an extra or incremental benefit for a spouse,
otherwise specially benefits a spouse,
benefits a participant,
burdens a participant,
is designed to follow applicable State law,
is designed to follow relevant State law,
is designed to meet a Federal or State tax-qualification condition, or
is designed to gain a Federal or State tax advantage.

For some provisions, a plan might follow an external civil-law definition of a spouse.

For other provisions, a plan’s definition of a spouse might relate to the internal law of the church.

Are you thinking about a health plan, a disability plan, a retirement plan, or something else?

And which provision are you thinking about?

For a provision that need not follow an external civil-law definition, a church might make different provisions about whom to treat as a spouse or not a spouse for different classes of workers, differentiating, for example, the church’s ministers, the church’s members, and employees who are neither.

Consider also that opposite-sex or same-sex is only one of many possible grounds by which a church’s terms for what is a marriage or who is a spouse differ from a nation’s or State’s definition for a civil-law marriage.

Further, a church might want its lawyer’s advice about governing-law provisions; exclusive-venue provisions; use of plan and church claims procedures, use of internal dispute-resolution procedures; and restrictions on which persons are authorized to accept service of process.

This is not advice to anyone.

On 3/12/2025 at 3:05 PM, Peter Gulia said:

For a church plan that has not elected to be ERISA-governed:

A church’s plan-design preferences about how to define a spouse might vary with each provision, following whether the provision:

subsidizes an extra or incremental benefit for a spouse,
otherwise specially benefits a spouse,
benefits a participant,
burdens a participant,
is designed to follow applicable State law,
is designed to follow relevant State law,
is designed to meet a Federal or State tax-qualification condition, or
is designed to gain a Federal or State tax advantage.

For some provisions, a plan might follow an external civil-law definition of a spouse.

For other provisions, a plan’s definition of a spouse might relate to the internal law of the church.

Are you thinking about a health plan, a disability plan, a retirement plan, or something else?

And which provision are you thinking about?

For a provision that need not follow an external civil-law definition, a church might make different provisions about whom to treat as a spouse or not a spouse for different classes of workers, differentiating, for example, the church’s ministers, the church’s members, and employees who are neither.

Consider also that opposite-sex or same-sex is only one of many possible grounds by which a church’s terms for what is a marriage or who is a spouse differ from a nation’s or State’s definition for a civil-law marriage.

Further, a church might want its lawyer’s advice about governing-law provisions; exclusive-venue provisions; use of plan and church claims procedures, use of internal dispute-resolution procedures; and restrictions on which persons are authorized to accept service of process.

This is not advice to anyone.

Pension Plan

Even within one pension plan, a plan might provide different definitions of a spouse for different purposes. For example:

A provision designed to meet Internal Revenue Code § 401(a)(9) might use Federal tax law’s definition of a spouse, and apply it to a relationship the church does not recognize as a marriage.

A plan might impose a survivor annuity to protect a spouse of a marriage the church recognizes (and has not annulled), even if civil law ended the marriage.

A plan might provide a special death benefit or a subsidized survivor annuity only to a surviving spouse of a marriage the church recognizes.

A plan might, for some purposes not constrained by Federal tax law, recognize as a participant’s spouse a civil-union party or domestic partner, even if the U.S. Treasury department’s interpretation treats such a person as not a spouse.

On 3/12/2025 at 12:09 PM, CuseFan said:

No. We have a number of those clients and they all were required to amend for the Windsor decision.

Required by who- the IRS? Were they submitted for new determination letters and were required as part of the review? Or as part of an audit?

Attorneys, IRS. However, the Windsor same sex spouse application is/was limited to those provisions governed by tax law rather than ERISA. Since nonelecting church plans are not subject to PRSA and QJSA rules, death benefits could be provided solely to opposite sex married couples but would have to recognize a same sex spouse for purposes of applying minimum distribution rules and rollover rules.

What CuseFan describes seems logically consistent with some possibilities and assumptions my posts in this thread mention.

21 hours ago, Peter Gulia said:

my posts in this thread mention

Sorry Peter, I didn't even see your response as I just saw and responded to the follow-up quote/question to me or I would have just referenced your more eloquent explanation of the issue. Thank you.

I’m very glad you responded, and with the useful information you added.

It’s information I otherwise would lack because the last time I had responsibility to get an IRS opinion or determination letter on the form of a plan’s documents was in the 1990s.

And your story reinforces the point that there can be, and sometimes need to be, different defined terms for different provisions.