New Labor Guidance on Same-Sex Marriage and ERISA

Thanks to the indispensable Chris Geidner, I see that the Department of Labor has issued “guidance” about how to deal with same-sex marriages under ERISA. Like just about every federal agency other than the Social Security Administration, the labor department takes the view that a marriage is valid for federal purposes if it was valid in the state where it was celebrated, regardless of whether the couple lives in an anti-recognition state.

A few thoughts:

— The guidance provides good policy reasons not to look at the law of the domicile. It does not, however, provide any arguments against (or even acknowledgment of) the solution that I’ve advocated, which would be to follow the choice of law provisions set out in the ERISA plan itself. (Most ERISA plans that I’ve read contain a choice of law provision designating a state whose law governs the interpretation of the plan.)

— The guidance argues that a domicile-based definition would “grow increasingly complex” because administrators “would need to continually track the state of domicile of all same-sex married employees and former employees and their spouses.” That’s true. But that problem wouldn’t occur under a plan-based approach.

— That said, the guidance deserves credit for explicitly flagging and talking about the choice of law problem in relatively coherent terms, and laying out some of the major arguments in favor of the policy it adopted.

— Unlike a lot of the other agency policies I’ve blogged about so far, it’s relatively easy to imagine a scenario where somebody could have standing to challenge this — fights over assets under ERISA are usually zero sum. That means we might actually see litigation over this policy.