Spousal Consent

[Guest Chuck118]

Has anyone ever come across this?

Plan Document has a spousal consent provision. Participant claims spouse on file has not been his spouse for years, but he has not updated company records to reflect this. After questioning the participant they claim to be a bigomist! Who signs spousal consent when multiple spouses are involved?

[QDROphile]

At least until the Supreme Court issues its ruling (any day now), DOMA currently recognizes only only one man and one woman as spouses. Start with the spouse on file and resolve that issue. Then you would look to ancillary information, such as the person identified for other purposes, such as the health plan.

[david rigby]

The plan should not have to bear unreasonable costs of this "research".

[MoJo]

There is, in fact, only one spouse - the first one. The second "purported spouse" isn't legally a spouse of the participant as you can't marry one when you are married to another (at least in the eyes of the law, "Big Love" notwithstanding).

On distributions, if you can't determine who is the real spouse - interplead the benefit to a court and let them decide. In this case, for a loan, I'd deny the loan until appropriate "spousal consent" is obtained - defined as the real spouse - of if that can't be ascertained, then an abundance of caution would suggest both "purported" spouses sign. If you get teh "wrong" consent, you may have to make the plan whole if the participant defaults, to protect the "right" one.

That probably would dissuade the participant from even asking for the loan....

[Tom Poje]

that reminds of the story I heard about the lady who went to the Credit Union to get a loan, how much, etc.

She was told she already had a loan.

looked at the paperwork

husband signature was there, and a signature was there under spouse, her name but not her signature.

hmmmmmmmmmmmmmm.

[Guest KristenE]

Wonder if he needs the loan to post bail.

[david rigby]

For us non-attorneys, the dictionary at law.com might help.

putative
adj. commonly believed, supposed or claimed. Thus a putative father is one believed to be the father unless proved otherwise, a putative marriage is one that is accepted as legal when in reality it was not lawful (e.g. due to failure to complete a prior divorce).

[QDROphile]

Every other dictionary should have about the same definition. The word is available to everyone. It tends to be used mostly in legal contexts because of the concern for correct understanding of legal status in relationships as oppsed to appearances. In any event, defining uncommon words is a service. Thank you for the effort.

[Peter Gulia]

MoJo's suggestion about interpleader or getting consents from all imaginable spouses might be apt.

Note the differences in how example 1 and example 3 below (taken from real court decisions) handle the possible effects of a fraudulent marriage.

When a participant is survived by a spouse and a putative spouse, which one is treated as the participant's surviving spouse?

There is no rule; whether a putative spouse, a real spouse, both, or neither is treated as a participant's spouse depends on a plan administrator's, arbitrator's, or judge's decisions in the particular circumstances.

The following two cases had opposite results. In my view, neither court explained the real reason for its decision. A third example illustrates a straightforward application of the law that a person whose marriage has not ended cannot marry another.

Example 1.

In 1965, John and Susie married in Louisiana. In 1970, a Louisiana court ordered a judgment of separation, but not any divorce or dissolution of John and Susie's marriage. In 1973, Susie, while still married to John, “married” Milton. In 2000, John, while still married to Susie, “married” Gwendolyn in Texas. In 2001, John died (while still married to Susie and “married” to Gwendolyn). He was domiciled in Texas when he died. After John's death, Susie and Gwendolyn each submitted a claim to his pension plan for a survivor annuity; each claimed that she was John's surviving spouse. The pension plan included the following provision: “All questions pertaining to the validity of construction of this Pension Plan shall be determined in accordance with the laws of the State of Illinois and, to the extent of preemption[,] with the laws and regulations of the United States.” (As cited below, these are the relevant facts of a real case.)

In resolving the plan administrator's interpleader, the court considered whether to apply Louisiana law, Texas law, Illinois law, or some combination of them in deciding which claimant (if either) was John's surviving spouse. Notwithstanding that neither of the claimants had argued for it, the court chose Texas law. Further, the court used Texas property law to resolve the status question needed to apply an ERISA plan's provision that preempts state law. Following this, the court found that Susie's acceptance of the benefits of her fraudulent “marriage” to Milton precluded her from asserting that she was John's surviving spouse, and recognized Gwendolyn as an innocent putative spouse to be treated as if she had been a spouse. Central States, S.E. & S.W. Areas Pension Fund v. Gray, 31 Employee Benefits Cas. (BNA) 1748, 2003 U.S. LEXIS 18282 (N.D. Ill. Oct. 8, 2003).

Example 2.

In 1966, Douglas married Ann in Ohio. They lived together in Ohio from 1966 to 1982. In 1972, Douglas began a relationship with Rita. In 1982, Ann left Douglas and moved to Tennessee. In 1985, Douglas and Rita “married” in Nevada. Each of Ann and Rita submitted claims for several benefits to be provided to Douglas' surviving spouse. The pension plan provided that it “shall be construed, governed[,] and administered in accordance with the laws of the State of Michigan[,] except where [sic] otherwise required by Federal law.”

In resolving the plan administrator's interpleader, the court considered whether to apply Federal law, Michigan law, or Ohio law, or some combination of them in deciding which claimant (if either) was John's surviving spouse. [See, e.g., Croskey v. Ford Motor Co.-UAW, 2002 U.S. Dist. LEXIS 8824 (S.D.N.Y. May 2, 2002).

Note 1.

In both of these cases, the court did not apply the contractual choice of law and, even further, ignored the plan's provision that the plan be construed using the plan-specified state law.

Note 2.

Courts' procedures for an interpleader, which focus on the arguments of the competing claimants and often do not require a stakeholder to assert a position, increase the likelihood that a court will render a decision that is unhelpful for future plan administration.

Example 3.

Philadelphia Eagles running back Thomas Sullivan was a participant under the NFL Player Retirement Plan. Thomas married Lavona in 1979. Thomas and Lavona stopped living together around 1983, and last had contact with one another around 1985. In 1986, Thomas “married” Barbara. Thomas died in 2002. On the plan’s interpleader, the federal court found that neither Barbara’s unawareness of Thomas’s marriage nor an assertion that Lavona “walked out on the marriage,” even if both alleged facts were fully proven, could have changed the fact that Thomas and Lavona remained married until his death. Likewise, Barbara’s belief that she was married to Thomas could not dissolve Thomas’s marriage to Lavona or permit Thomas’s marriage to anyone while he still was married to another. Lavona is entitled to the pension benefits that were the subject of the court proceeding. Hill v. Bell, 50 Employee Benefits Cas. (BNA) 1220 (E.D. Pa. Nov. 4, 2010); see also Grabois v. Jones, 89 F.3d 97 (2d Cir. 1996) (Junior was married to Annie Marie from 1948 until his death in 1991, and was “married” to Kay from 1962 until his death. After two years of litigation, the appeals court decided that it lacked sufficient information to review the trial court’s findings, including any finding concerning which claimant was the participant’s widow, and so remanded the case to the trial court for it to pursue further development of relevant facts).

[masteff]

Courts' procedures ... increase the likelihood that a court will render a decision that is unhelpful for future plan administration.

While unintended as such, that's the punchline!