The Department of Labor has now issued Technical Release No. 2013-04 (September 18, 2013), in which it announces that for purposes of Title 1 of the Employee Retirement Income Security Act of 1974 (“ERISA”), the term “spouse” will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term “marriage” will be read to include a same-sex marriage that is legally recognized as a marriage under any state law. (The latter provision is apparently necessary to deal with marriages that are performed abroad.) Civil unions and domestic partnerships will not, however, be treated as marriages. This corresponds with the position earlier taken by the IRS.
The announcement applies only for purposes of ERISA, however. Face Sheet 28F indicates that the Department of Labor will treat a party to same-sex marriage as a spouse for purposes of the Family & Medical Leave Act only if the state where the employee resides recognizes the marriage.