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Spouse
Practical Law Glossary Item 3-541-3225 (Approx. 3 pages)
Glossary
Spouse
As a result of Obergefell v. Hodges, a spouse is an individual married to a person of the opposite or same sex (135 S. Ct. 2584 (2015)). On June 26, 2015, in Obergefell, the US Supreme Court held that same-sex couples have the right to marry in all states and a state may not refuse to recognize a lawful same-sex marriage performed in another state based on its same-sex character. (For a sample definition of spouse for qualified retirement plans, see Standard Clause, Plan Language, Definition of Spouse.)
Two years prior to Obergefell, in United States v. Windsor, the Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) (1 U.S.C. § 7), which defined spouse to mean only a husband or wife of the opposite sex, was unconstitutional (570 U.S. 744 (2013)). As a result, federal law must look to state law to determine whether a same-sex couple is considered married. Guidance interpreting the Windsor decision provided that a spouse is an individual married to a person of the opposite or same sex if the couple is lawfully married under state law, based on the state in which the marriage ceremony occurs or occurred, for purposes of:
- The Internal Revenue Code (effective prospectively, beginning September 16, 2013) (see Rev. Rul. 2013-17).
- Title I of the Employee Retirement Income Security Act of 1974 (ERISA) (effective prospectively, beginning September 18, 2013) (see DOL Technical Release 2013-04).
- The DOL's regulations at Chapter XXV of Title 29 of the Code of Federal Regulations, which include rules addressing reporting, disclosure, fiduciary, claims procedures, civil penalties, and group health plan compliance (effective prospectively, beginning September 18, 2013).
- The federal securities statutes, the rules and regulations promulgated under those statutes, releases, orders, and any guidance issued by the Securities and Exchange Commission (SEC) or its staff.
For health and welfare plans, after Obergefell, the definition of "spouse" depends on how the plan is funded. For insured health plans, the definition of spouse is governed by state insurance law, which will likely require that same-sex spouses be included as spouses. For self-insured health plans, in contrast, the employer has greater flexibility to restrict coverage to opposite-sex spouses through the plan's definition of spouse (though the employer could face litigation exposure under federal discrimination laws). Also, two individuals (whether opposite-sex or same-sex) who have entered into a registered domestic partnership, civil union, or other similar formal relationship recognized under state law that is not considered a marriage under the state's laws are not considered spouses (see Windsor, 133 S. Ct. at 2682-96, Practice Note, Domestic Partner Health Benefits, and IRS: Answers to Frequently Asked Questions for Individuals of the Same Sex Who Are Married Under State Law).