The Federal Retirement Thrift Investment Board (FRTIB), the agency responsible for administering the Thrift Savings Plan (TSP), announced today that it has promulgated an interim final rule revising its regulations to provide that the FRTIB will look to the jurisdiction of celebration to determine a participant’s marital status. The FRTIB will adopt a final rule after consideration of public comments on this interim rule. The rule can be found at: http://www.gpo.gov/fdsys/pkg/FR-2013-09-20/pdf/2013-22898.pdf
The U.S. Supreme Court recently held in United States v. Windsor that section 3 of the Defense of Marriage Act, defining “marriage”, is unconstitutional. Windsor requires the FRTIB to defer to state law in determining the marital status of TSP participants. The FRTIB anticipates conflicting state laws. Existing FRTIB regulations have only one choice-of-law provision pertaining to marriage. It requires the FRTIB to look to the state of domicile of the participant for the purposes of paying benefits upon the death of the participant and establishing a beneficiary participant account.
The FRTIB is required by statute to administer the Thrift Savings Plan solely in the interest of its participants and beneficiaries and for the exclusive purposes of (1) providing benefits to participants and their beneficiaries, and (2) defraying the reasonable expenses of administering the Thrift Savings Fund.
The existing choice-of-law provision precludes the FRTIB from offering certain TSP benefits to the same-sex spouses of participants who are domiciled in states that do not recognize same-sex marriages performed in other states or foreign countries. The current choice-of-law is detrimental to a population of TSP participants and does not serve to defray the expenses of administering the Thrift Savings Fund. As a result, the FRTIB is revising its regulations to provide that FRTIB will look to the state of celebration of a marriage to determine a participant’s marital status.