Same Sex Spousal Benefits
Posted 01.03.14
Jonathan A. Segal

You have an employee who work in Texas, one of the 32 states that does not recognize same sex marriage. The employee  resides in New Mexico, one of 18 states that recognizes same sex marriage. The employee was married to a person of the same sex in California.

For purposes of determining the employee’s spouse’s eligibility for benefits, do we look at:

1. State of celebration—where the marriage occurred
2. State of employment—where the employee works
3. State of residence—where the employee lives

The answer is 1: state of celebration. Regardless of whether the state in which the employee works or resides recognizes same sex marriage, the employee generally is eligible for spousal benefits under ERISA.  Why?  Please read this alert for legal analysis.

This blog should not be construed as legal advice, as establishing an attorney-client relationship or applying to specific factual situations.

About Jonathan A. Segal
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .