Notice 2015-86: Retirement plan Q&As, implications for same-sex spouses

Notice 2015-86: Retirement plan, same-sex spouses

The IRS today released an advance version of Notice 2015-86 that addresses—in “question and answer” (Q&A) format—implications on retirement plans and on health and welfare plans of the decision of the U.S. Supreme Court recognizing same-sex marriage.

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Notice 2015-86 [PDF 45 KB] provides guidance on application of the decision in Obergefell v. Hodges, 576 U.S. ___, 135 S.Ct. 2584 (2015) to retirement plans qualified under section 401(a) and to health and welfare plans, including cafeteria plans under section 125. 

In general, today’s notice states that with the 2013 decision of the Supreme Court in United States v. Windsor, same-sex marriages were recognized by the IRS in prior guidance (e.g., Notice 2014-19) for federal tax law purposes. 

Q&As in Notice 2015-86

According to today’s release, plan sponsors have indicated they may alter aspects of their employee benefit plans, or how their plans are administered, in response to Obergefell, and thus asked for clarification of the application of Obergefell to certain changes to employee benefit plans—that is, a discretionary expansion of benefits not required under the federal tax rules. Accordingly, the IRS provided the Q&As in today’s guidance to address these issues and provide the requested guidance.

Among the questions answered, Notice 2015-86 addresses:

  • Whether Obergefell requires a plan sponsor to change the terms or operation of the plan
  • Whether a qualified retirement plan needs to be amended to provide new rights or benefits with respect to same-sex spouses
  • Whether or when retroactive amendments may be made 

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