October 18, 2013
ERISA and States That Recognize Same-Sex Marriages As Civil Unions
Following up on our previous discussion of Department of Labor Technical Release No. 2013‑04, the first reported decision to consider the issue has held that a same-sex spouse is entitled to benefits as a surviving spouse under a plan regulated by ERISA:
Post-Windsor, where a state recognizes a party as a "Surviving Spouse," the federal government must do the same with respect to ERISA benefits—at least pursuant to the express language of the ERISA-qualified Plan at issue here. There can be no doubt that Illinois, the couple's place of domicile, would consider Ms. Tobits Ms. Farley's "surviving Spouse"—indeed it already has made that specific finding under state law. Windsor makes clear that where a state has recognized a marriage as valid, the United States Constitution requires that the federal laws and regulations of this country acknowledge that marriage. In light of that, this Court finds that Ms. Tobits is Ms. Farley's "Spouse" pursuant to the terms of the Plan. This finding alone is dispositive of the issue of the proper recipient of Ms. Farley's death benefits.
Cozen O'Connor, P.C. v. Tobits, CIV.A. 11-0045, 2013 WL 3878688, at *4 (E.D. Pa. July 29, 2013) (footnote omitted).
The plan at issue defined a spouse as follows:
"Spouse" means the person to whom the Participant has been married throughout the
one-year period ending on the earlier of (1) the Participant's annuity starting date or (2) the date of the Participant's death. The Plan Administrator may rely on the Participant's written statement regarding such Participant's marital status.
Id. at *3. Nothing in this definition provides any support for defining "spouse" in a manner other than the normal definition of the term under Illinois law.
The couple at issue in Cozen O'Connor were married in Canada. They then moved to Illinois, and lived there until the decedent died in 2010. "A marriage between 2 individuals of the same sex is contrary to the public policy of this State." 750 Ill. Comp. Stat. 5/213.1. But Illinois recognizes out-of-state same-sex marriages as civil unions:
A marriage between persons of the same sex, a civil union, or a substantially similar legal relationship other than common law marriage, legally entered into in another jurisdiction, shall be recognized in Illinois as a civil union.
Id. 75/60. Applying this statute, an Illinois state court declared before the federal decision that the couple in Cozen O'Connor had a valid Illinois civil union, and that the surviving partner was the heir of the decedent.
Cozen O'Connor shows that the choice-of-law issues arising from Windsor, which are omplicated enough on their own, are even more complicated in states such as Illinois that recognize marriages as civil unions. The Canadian marriage in Cozen O'Connor was not recognized as a marriage in Illinois. But under section 75/60, it was recognized as a civil union. Cozen O'Connor holds that that is close enough to make the marriage valid for ERISA purposes—even though it was not valid as a marriage under Illinois state law.
The same result may not apply in other contexts. For example, the IRS has stated that it will not recognize a marriage between parties "who have entered into a registered domestic partnership, civil union, or other similar formal relationship recognized under state law that is not denominated as a marriage under the laws of that state." Rev. Rul. 2013-17 holding 3. Partners in civil unions must therefore exercise care, and should seek advice of counsel, when determining whether to claim benefits in other states as married persons.
Another recent post-Windsor decision held that the federal government must recognize same-sex marriages in awarding benefits to military veterans. "The Court finds that the exclusion of
spouses in same-sex marriages from veterans' benefits is not rationally related to the goal of gender equality." Cooper-Harris v. United States, 2:12-00887-CBM AJWX, 2013 WL 4607436 (C.D. Cal. Aug. 29, 2013).
Cooper-Harris enjoined the government against applying 38 U.S.C. §§ 101(3) and 101(31), which define a marriage for purposes of veterans' benefits as a relationship between persons of the opposite sex. This is a logical extension of Windsor, as there is no basis for distinguishing between the general definition of marriage struck down in that case, 1 U.S.C. § 7, and the similar but more specific provisions at issue in Cooper-Harris.