On June 26, 2013, the U.S. Supreme Court announced its decision in United States v. Windsor, declaring unconstitutional Section 3 of the Defense of Marriage Act (DOMA), which defines “marriage” for purposes of all federal laws as the marriage between one man and one woman. As a result, for purposes of any federal law, including the Internal Revenue Code and Employee Retirement Income Security Act (ERISA), a same-sex couple who is legally married under state law must be treated as married.
For married same-sex couples living in one of the 13 states that allow same-sex marriage, the District of Columbia, or New Mexico (which recognizes same-sex marriages performed in other states, but does not allow same-sex marriage), the married same-sex couple must be treated the same as an opposite-sex married couple for federal law purposes. Unfortunately, at this time, it is not clear whether a legal same-sex marriage continues to be recognized for purposes of federal law if the same-sex couple moves to a state that does not recognize same-sex marriage. Section 2 of DOMA, which was not considered by the Supreme Court in the Windsor case, allows states and territories of the United States to deny recognition of same-sex marriages that originated in other states or territories. There has been no definitive statement from the Internal Revenue Service (IRS) or the Department of Labor (DOL) whether marital status is determined based on the state in which the marriage was performed or the state in which the couple currently resides.