Retirement Benefits for Same-Sex Married Couples

The U.S. Supreme Court's landmark decisions in United States v. Windsor and Obergefell v. Hodges made same-sex marriages legal nationwide, and ensured that those marriages would enjoy the same rights and benefits bestowed by state and federal law on traditional marriages. As a legally married same-sex spouse, you'll want to be aware of several retirement plan rules that apply specifically to married individuals.

BENEFICIARY RIGHTS

If you participate in a 401(k) or similar plan at work, federal law provides that your spouse is automatically the beneficiary of your account in the event of your death. You can name someone else as beneficiary, but only if your spouse agrees in writing (witnessed by a plan representative or notary public). Special rules apply if your plan pays benefits in the form of an annuity.

IRAs aren't subject to this federal law, although your state may impose its own, similar requirements. For example, if you live in a community property state, your spouse may have legal rights to your IRA regardless of whether he or she is named as the primary beneficiary.

Even without a requirement that you do so, naming your spouse as beneficiary is often the best choice. One reason is that a spouse beneficiary has more options and flexibility in terms of post-death distributions than a nonspouse beneficiary. For example, spouse beneficiaries generally may take required distributions from employer plans and IRAs at a later date, and over a longer period of time, than nonspouse beneficiaries.

Your surviving spouse may also have two other options that are not available to other beneficiaries. First, your surviving spouse may choose to roll over inherited IRA or plan funds to his or her own IRA or plan. Second, your surviving spouse may elect to simply leave the funds in an inherited IRA and treat that account as his or her own account. In either case, the potential may exist for significant estate planning and income tax benefits. This is because your surviving spouse may defer taking distributions of the inherited funds until his or her own required beginning date, and may also designate new beneficiaries of his or her choice (your children, for example) who could later stretch out distributions even more after your spouse's death.

TRADITIONAL PENSION PLAN--YOUR RIGHT TO A QUALIFIED JOINT AND SURVIVOR ANNUITY

If you participate in a traditional pension plan at work, you'll typically be entitled to receive monthly benefits from the plan after you retire. These benefits are usually based on your age at retirement, as well as your years of service and your average earnings with the company. The normal form of benefit is usually a single life annuity--that is, an annuity that makes monthly payments to you only while you're alive and stops making payments after your death.

But if you're married, federal law requires that your benefit be paid instead as a qualified joint and survivor annuity (QJSA), unless you elect another payment option (with your spouse's written consent). Though the term sounds complicated, a QJSA is simply an annuity that pays monthly benefits to you while you're alive and continues to pay at least 50% of your benefit to your spouse upon your death.

The payments you'll receive under a QJSA are normally smaller than the amount you'd receive under the single life annuity because those payments are projected to continue until both you and your spouse have died. The single life annuity provides a larger monthly payment because it's projected to be paid over a shorter period of time--one lifetime instead of two. Payments stop once you, the plan participant, die. One of the most important retirement decisions you and your spouse may make is whether to receive your pension benefit as a QJSA (a smaller monthly amount payable over your joint lives) or to waive that benefit in favor of the larger single life annuity.

However, some employers "subsidize" the QJSA. Subsidizing the QJSA occurs when your employer's plan does not reduce the benefit payable during your joint lives (or reduces it less than the amount allowed), despite the longer payout period, making the actuarial value of the QJSA greater than that of the single life annuity option. A subsidized QJSA can be a very valuable benefit for married participants. It's important for you to know whether your employer subsidizes the QJSA so that you can make an informed decision about which payment option to select.

For example, Tom is a participant in his employer's defined benefit plan and is married. His pension benefit payable as a single life annuity is $3,000 per month beginning at age 65. His benefit payable as a QJSA is also $3,000 per month, with 50% of his benefit (that is, $1,500) continuing to his surviving spouse after his death. Tom's QJSA is subsidized: The benefit payable during Tom's lifetime is not reduced, even though benefits will be paid over both Tom's and his spouse's lifetimes.

YOUR RIGHT TO A SPOUSAL IRA - EVEN IF YOUR INCOME IS LIMITED

If you're a nonworking spouse, your ability to contribute toward your own retirement is limited. But there is one tool you should know about. The "spousal IRA" rule may let you fund an IRA even if you aren't working and have no earnings. A spousal IRA is your own account, in your own name--one that could become an important source of retirement income with regular contributions over time.

How does it work? Normally, to contribute to an IRA, you must have compensation at least equal to your contribution. But if you're married, file a joint federal income tax return, and earn less than your spouse (or nothing at all), the amount you can contribute to your own IRA isn't based on your individual income; it's based instead on the combined compensation of you and your spouse.

For example, Mary (age 50) and Jane (age 45) are married and file a joint federal income tax return for 2016. Jane earned $100,000 in 2016, and Mary, who stayed at home taking care of ill parents, earned nothing for the year. Jane contributes $5,500 to her IRA for 2016. Even though Mary has no compensation, she can contribute up to $6,500 to an IRA for 2016 (that includes a $1,000 "catch-up" contribution), because Jane and Mary's combined compensation is at least equal to their total contributions ($12,000).

The spousal IRA rule only determines how much you can contribute to your IRA; it doesn't matter where the money you use to fund your IRA actually comes from--you're not required to track the source of your contributions. (The spousal IRA rule doesn't change any of the other rules that generally apply to IRAs. You can contribute to a traditional IRA, a Roth IRA, or both. But you can't make regular contributions to a traditional IRA after you turn 70½. And your ability to make annual contributions to a Roth IRA may be limited depending on the amount of your combined income.)

YOUR RIGHT TO A QUALIFIED DOMESTIC RELATIONS ORDER

While we all hope our marriages will last forever, unfortunately that's not always the case. The issue of how retirement plan benefits will be handled in the event of a divorce is especially critical for spouses who may have little or no retirement savings of their own.

Under federal law, employer retirement plan benefits generally can't be assigned to someone else. However, one important exception to this rule is for "qualified domestic relations orders," commonly known as QDROs. If you and your spouse divorce, you can seek a state court order awarding you all or part of your spouse's retirement plan benefit. Your spouse's plan is required to follow the terms of any order that meets the federal QDRO requirements. For example, you could be awarded all or part of your spouse's 401(k) plan benefit as of a certain date, or all or part of your spouse's pension plan benefit. There are several ways to divide benefits, so it's very important to hire an attorney who has experience negotiating and drafting QDROs--especially for defined benefit plans where the QDRO may need to address such items as survivor benefits, benefits earned after the divorce, plan subsidies, COLAs, and other complex issues. (For example, a QDRO may provide that you will be treated as the surviving spouse for QJSA purposes, even if your spouse subsequently remarries.) The key takeaway here is that these rules exist for your benefit. Be sure your divorce attorney is aware of them.

Marianna Goldenberg, CDFA™June 30, 2018Comment