We are all waiting for the Internal Revenue Services to tell us which marriages will count for tax purposes now that the Supreme Court has handed down its decision in United States v. Windsor. But in the meantime courts are making their own determinations. Last week we saw a federal district court judge in Ohio rule that under Windsor the state of Ohio must recognize the same-sex marriage of an Ohio couple who married in Maryland. Now we have another opinion applying Windsor to find a same-sex marriage of an Illinois couple valid for purposes of ERISA.

Jennifer Tobits and Sarah Ellyn Farley were married in Toronto in 2006. Ms. Farley worked for a law firm that had an ERISA-covered retirement plan. Upon her death, her parents claimed the retirement benefits under a document naming them as beneficiaries that they had acquired the day before she died. Yesterday, a federal district court in Pennsylvania (the law firm’s home office is in Philadelphia) ruled that Ms. Tobits, as the surviving spouse, was entitled to the funds. ERISA mandates that the spouse receive such funds unless she (or he) has waived rights. That did not happen in this case and so Ms. Tobits is legally entitled to the funds.

The court found that Illinois, where the couple lived, would recognize the Canadian marriage based on the state’s civil union law. The court said:  “As this Canadian marriage was deemed valid, albeit under the nominal title of “civil union” in Illinois, there can be no dispute that Ms. Tobits is a “surviving Spouse” pursuant to the Plan.

Shannon Minter of the National Center for Lesbian Rights represented Ms. Tobits. A copy of the opinion can be found at  http://www.nclrights.org/site/DocServer/Tobits_decision.pdf

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