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.