Following the U.S. v. Windsor decision, same-sex marriages were legalized and recognized across the United States. The Windsor decision required all federal agencies to grant the same benefits to same-sex couples as those that are enjoyed by heterosexual couples. For instance, same-sex couples can now file joint tax returns, obtain VA benefits, and spouses may participate in their spouse's ERISA-covered retirement plan.
ERISA, or the Employee Retirement Income Security Act, governs the taxation and creation of employee retirement plans. It does not permit employers to create retirement plans and then jettison them in bankruptcy or through other means. ERISA also shields some portions of retirement plans from taxation, deferring it until the plan vests.
The Department of Labor is only recently getting around to adopting rules that explicitly state same-sex couples may participate in and access their spouses' ERISA-covered plan. Furthermore, the rules clarify that no company or state government may abrogate these regulations.
But it is important to keep in mind that these rules only affect ERISA-covered plans. State and local government plans, as well as retirement plans offered by religious institutions, exist outside of ERISA and may continue to exclude same-sex couples from participating.
It is possible that a case may challenge the discriminatory treatment of same-sex couples by a state government or religious institution but the law currently does not require these entities to provide mutual benefits to same-sex spouses.
As illustrated above, obtaining ERISA benefits is not always immediately clear. If you believe your ERISA benefits were unjustly denied, you may want to speak with a lawyer. A lawyer can help you get the benefits you and your spouse deserve.