Legal Briefing: Same-Sex Spouse Entitled to Survivor Benefits


Sep. 16, 2013

Sarah Farley began working at the law firm Cozen O’Connor in 2004 and was eligible to participate in the firm’s profit-sharing plan.

In 2006, Farley legally married Jean Tobits in Canada, which was recognized in their home state of Illinois by virtue of Illinois’ civil union statute. When Farley died in 2010, both Tobits and Farley’s parents requested payment of the pre-retirement survivor annuity required under the plan. In response to the competing claims, the firm filed an action requesting that Tobits and the Farleys settle their respective claims.

The court held that since the plan requires that death benefits be paid to Farley’s “surviving spouse” upon her death, unless she waived the right to the benefits, a determination of whether Tobits is Farley’s “surviving spouse” is dispositive of the distribution of death benefits.

In determining whether Tobits, a same-sex spouse, qualifies as a spouse under the Employee Retirement Income Security Act, the court relied on the U.S. Supreme Court’s recent decision in United States v. Windsor, 133 S. Ct. 2675 (June 26, 2013), which held that the federal Defense of Marriage Act’s definition of “spouse” as “a person of the opposite sex who is a husband or a wife” unlawfully deprived same-sex couples in legally recognized marriages of equal liberty.

Thus, the court held that Tobits was Farley’s “surviving spouse” entitled to the benefits. Cozen O’Connor v. Tobits, No. 11-0045, (July 29, 2013).

IMPACT: Employers might be required to recognize same-sex partners as spouses for purposes of providing benefits under the company’s benefit plans.

James E. Hall, Mark T. Kobata and Marty Denis are partners in the law firm Barlow, Kobata and Denis, which has offices in Los Angeles and Chicago. To comment, email Follow Workforce on Twitter at @workforcenews.

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