Barbara J. Katzenberg, Attorney at Law
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Guidance issued on retirement accounts for same-sex couples

This week regulators continued the slow trickle of federal guidelines reacting to last year’s Supreme Court ruling striking down the Defense of Marriage Act. The latest set of guidelines that have been announced that will impact married same-sex couples were issued in regards to retirement benefits. These benefits are very important for Massachusetts families planning for their future.

Specifically the Treasury Department and the Internal Revenue Service have said that retirement plans must offer equal benefits to same-sex couples in order to qualify under the Employee Retirement Income Security Act. The effective date for this requirement is June 26, 2013, which was the date of the Supreme Court decision.

From a family law perspective, this new requirement is most significant in the area of marital versus individual property. Married couples often share a retirement account, particularly if one works full time and benefits from the retirement account while the other works part time or does not work in order to stay home and care for children. The issue of who gets the retirement account or how to split it up arises frequently in divorce cases and the question of entitlement may become trickier for spouses who were not formal beneficiaries of the account.

Under this new ruling retirement accounts must have the option to include same-sex spouses and as a result it will be easier for same-sex spouses to raise a legitimate claim to these funds in the event of a divorce. Otherwise, income earned by one spouse and set and aside and invested by them alone could be considered a non-marital asset.

Source: Business Insurance, “Same-sex retirement benefits retroactive to June 2013, IRS rules,” Matt Dunning, April 7, 2014. 

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