In the first reported ERISA decision post-Windsor, the U.S District Court for the Eastern District of Pennsylvania held (in Cozen O’Connor, P.C. v. Jennifer Tobits) that a same-sex spouse is to be treated as the decedent’s lawful spouse for purposes of entitlement to death benefits under a retirement plan. In reaching its decision, the court relied on Windsor and reasoned that ERISA and the Internal Revenue Code (Code) provide the definition of spouse; ERISA and the Code incorporate valid state law; and, under Illinois’ civil union statute, Illinois recognizes lawful same sex marriages solemnized in other jurisdictions.
The pension plan document defined spouse as a person to whom the participant was married for more than one year. The plan document did not address the issue of same-sex marriage. The court held that if the plan is silent as to the definition of spouse, the court will look to ERISA and the Code to determine who can be a spouse. The court then held that, post-Windsor, the term spouse is no longer unconstitutionally restricted to members of the opposite sex, but now includes same-sex spouses in otherwise valid marriages.
The facts in Cozen make the court’s decision interesting in certain respects. Of particular note is that the participant died prior to the Windsor decision, and it is also noteworthy that the couple lived in a civil union state (as opposed to a state that allows same-sex marriage). Query whether the court’s decision would have been different had the couple lived in a state that does not recognize same-sex unions of any kind.