Senators Shaheen and Hassan join call to ensure all eligible same-sex couples receive pension survivor benefits

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December 14, 2021

** The Senators Urge Treasury and IRS to revise old guidelines that allow pension plans to discriminate against same-sex couples **

** Senators: “We should not let the echoes of bigotry that denied so many the right to marry for so long rob them again after losing their loved ones.” “**

(Washington, DC) – US Senators Jeanne Shaheen (D-NH) and Maggie Hassan (D-NH), a member of the Senate Committee on Health, Education, Work and Pensions (HELP), have joined to 43 of their Senate colleagues to call on the Biden administration to review current guidelines that have led members of the LGBTQIA + community to be denied survivor pension benefits after losing their life partner.

Letter to Treasury Secretary Janet Yellen and Internal Revenue Service Commissioner Charles Rettig calls for action to address the fact that some pension plans refuse to treat same-sex marriages as having met the one-year requirement necessary to qualify for survivor benefits in situations where couples were legally prohibited from marrying within one year of the member’s death. The Social Security Administration recently took action to prevent these barriers from denying people survivor benefits through Social Security, and senators are urging the IRS to take similar steps to ensure people do not see themselves. deny survivor benefits because of discrimination.

“We are writing to urge you to reconsider guidelines issued under the Obama administration that allow certain qualified pension plans to discriminate against the granting of survivor benefits to same-sex couples. We should not let the echoes of the bigotry that has deprived so many people of the right to marry for such a long time rob them again after losing their loved ones, ”wrote the senators.

“When the Supreme Court overturned state bans on same-sex marriage, tens of thousands of Americans rushed to get married. These LGBTQ + Americans had engaged relationships for years – some decades – and were finally able to have their love recognized under the law and receive all of the benefits that come with marriage. However, as a painful reminder of the inequality these couples have long faced, some in same-sex relationships who tragically lost their partners soon after their marriage or before they could legally marry have also been barred from receiving benefits. survivor. For these surviving spouses or partners, difficulties arise when access to benefits depends on the length of their marriage.

Full text of the letter below and PDF HERE.

Dear Secretary Yellen and Commissioner Rettig:

We are writing to urge you to reconsider guidelines issued under the Obama administration that allow certain qualified pension plans to discriminate against the granting of survivor benefits to same-sex couples. We should not let the echoes of the bigotry that denied so many the right to marry for so long deprive them again after losing their loved ones.

When the Supreme Court overturned state bans on same-sex marriage, tens of thousands of Americans rushed to get married. These LGBTQ + Americans had engaged relationships for years – some decades – and were finally able to have their love recognized under the law and receive all of the benefits that come with marriage. However, as a painful reminder of the inequality these couples have long faced, some in same-sex relationships who tragically lost their partners soon after their marriage or before they could legally marry have also been barred from receiving benefits. survivor.

For these surviving spouses or partners, difficulties arise when access to benefits depends on the length of their marriage. For example, under applicable law, certain eligible pension plans must provide an eligible joint and survivor pension (“LPQ”) upon retirement to married participants (and generally must provide an eligible pre-retirement pension (“LPQ”). the surviving spouse of a married member who dies before retirement).[1] However, a plan is not required to consider a member to be married unless the member and his or her spouse have been married throughout the one-year period ending on the pension start date or on the date of death of the participant.[2]

It has come to our attention that some pension plans refuse to consider same-sex marriages as having met the one-year requirement when couples have been legally prohibited from marrying within one year of the member’s death.

In 2014, the Internal Revenue Service (“IRS”) issued guidance following the Supreme Court ruling in US v. Windsor, which struck down section 3 of the Defense of Marriage Act defining marriage as a union between a man and a woman.[3] In Notice 2014-19, the IRS required that a qualifying pension plan recognize a member’s same-sex spouse as the member’s spouse as of June 26, 2013, if the member was domiciled in a state that recognizes same-sex marriages, as well as from September 16, 2013, if the participant was domiciled in a state that does not recognize same-sex marriages.[4] The guidelines, however, also provided, among other things, that a qualifying pension plan would not be disqualified “simply because it did not recognize a member’s same-sex spouse as a spouse before June 26, 2013”.

By allowing a plan to ignore same-sex relationships before that date, the IRS ignores the fact that many of these couples were barred from marriage because of discriminatory marriage laws where they lived, even though they did. were in a loving and committed relationship and would have married. sooner if they could. It was not until June 26, 2015 that same-sex relationships were duly recognized, when the Supreme Court ruled in Obergefell v. Hodges a constitutional right to marriage, including the “constellation” of rights associated with marriage, such as “survivor’s rights and benefits.”[5]

The Social Security Administration has recently recognized this reality and will accept and / or reconsider survivor benefit claims from spouses and same-sex partners who have not been able to marry for the required nine months due to the country’s marriage bans. State.[6] The IRS should do the same for survivor benefits. Just as laws prohibiting same-sex marriage are unconstitutional, so are the exclusions of survivor benefits associated with such marriage bans.

Specifically, the IRS should revise its 2014 guidelines to require that qualified pension plans with marriage duration requirements be recognized as eligible for bona fide same-sex survivor benefits when same-sex partners have married their partners. relatives but were denied equal access to benefits because they were prevented from marrying for the length of time required by the plan documents, or when they were prevented from marrying at all to their relatives. Although the use of a length of marriage condition may be justified as an indicator to detect or deter fictitious relationships between opposite-sex couples – who have always enjoyed the right to marry – it cannot meet this requirement. function for same-sex couples who have been prohibited from marrying. another. Surviving same-sex partners and spouses who have been unable to marry due to discriminatory marriage laws should be allowed to re-submit survivor benefits or reopen previously denied claims.

Correcting this error will end the discriminatory treatment of thousands of same-sex partners and spouses, and allow them to access the benefits owed to them.

We look forward to hearing from you. Thank you in advance for your attention to this important matter.

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