Employers Should Define Spouse in Plan Documents in Light of Recent Benefits Litigation

Todd A. Solomon
March 25, 2013 — 2,546 views  
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In Ginther et al v. Steelworkers Health And Welfare Plan et al, a case filed in federal court on February 11, 2013, an employee alleges that his employer wrongfully denied health coverage to his same-sex spouse. The health plan at issue does not provide a clear definition of spouse or dependent, exposing the company to potential liability under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). In light of this recent lawsuit, and others like it, employers should strongly consider amending their welfare and retirement plans to include a clear definition of the terms "spouse" and "dependent". Employers that do not specifically define these terms are vulnerable to challenges by same-sex spouses and civil union partners if the employer denies benefits to such partners. In particular, those employers that have employees who work (or live) in jurisdictions that have legalized same-sex marriage (currently, nine states and the District of Columbia )should expect to see an increase in requests for spousal benefit coverage from employees who have legally married their same-sex partners.

The federal Defense of Marriage Act ("DOMA") defines marriage as between one man and woman for all purposes under federal law. Therefore, an employer can attempt to rely on the DOMA definition of spouse in administering its plan. If the plan is properly drafted, the plan administrator's interpretation of an ambiguous concept should be granted a fair amount of judicial deference. However, the DOMA definition of spouse does not automatically apply to an ERISA-covered benefit plan absent a specific plan provision saying as much, and plans without a specific definition of spouse are left vulnerable to legal challenges similar to the one in the Githner case. Therefore, employers that wish to limit benefits coverage to opposite-sex spouses should specifically include a DOMA-type definition of spouse in their benefit plan documents and SPDs.

Given the prevalence of same-sex couples and the growing number of states providing legal recognition of same-sex couples, employers will be well-served to begin the admittedly tedious but important job of reviewing the use of “spouse” in each of their benefit programs to determine whether it is desirable or required to cover same-sex spouses, and then implementing any necessary administrative procedures and preparing plan amendments to reflect the appropriate treatment.

Todd A. Solomon

McDermott Will & Emery LLP