Benefit Election Package -- Same Sex Marriage

[Andy the Actuary]

The DB benefits election packages I prepare typically require the participant to check one of three boxes:

[ ] I am married

[ ] I am not married

[ ] I am married but cannot locate my spouse

Are practitioners modifying the election packages they prepare to request additional information? This seems like a damned-if-you-do and damned-if-you-don't proposition. On one hand, the Plan would endeavor to respect a participant's privacy. On the other hand, you'd hate for a legally married beneficiary to show up some day and demand a survivor benefit when benefits weren't reduced to cover the cost.

In absence of any convincing direction, I will not change the package understanding that married is married and you could have the same issue with a heterosexual estranged spouse if the participant checks the "I am not married" box.

Adding modifiers such as "legally" married can be problematic. For example, Texas recognizes common-law marriage in respect to the J&S stuff.

Thoughts?

[My 2 cents]

Does federal law require extending the QJSA/spousal consent rules to common-law marriages? Does Texas confer sufficient legality to such marriages?

If so, when is a same-sex relationship considered a common-law marriage? After 7 years? 10 years? 20? No doubt, there are same-sex couples living in Texas who have been together that long who have not gotten around to going out of state to legally marry. If the Texas laws concerning denial of recognition of same-sex marriages in places where such marriages are legal is not permitted to stand (and the current legal status of the issue is that those Texas laws are unconstitutional), would it not be necessary for Texas to confer common-law marriage status on similarly situated same-sex couples as it confers on opposite-sex couples?

[Andy the Actuary]

Sorry, I only twirl my propeller and numbers come out of my mouth. Had such a case. The Plan's attorney said, "yes." That's all I know.

[Kevin C]

I don't know how it is in other states, but in Texas, you can't unintentionally become common law married. Once "proved", a common law marriage is as valid as any other marriage.

The following is from a state web site:

Does Texas Recognize "Common Law" marriage?

Common-law marriage, also known as "informal marriage" is legal in Texas. A couple may choose whether or not to register their informal marriage. If they do choose to register, both the husband and wife must appear before the County Clerk to file a Declaration of Informal Marriage. The couple must list the date on the declaration from which they have considered themselves married. In other words, a couple can be married for some period of time before registering their informal marriage.

There are two ways a couple may prove that they are informally married:

1. They can file a Declaration of Informal Marriage (available from the County Clerk's office) or
2. They meet all of the following conditions:
   • the couple agrees that they are married;
   • they live together in Texas; and
   • They represent themselves to other individuals that they are married to one another [Family Code § 2.401]

[My 2 cents]

Naturally raises the question - what would happen if a same-sex couple in Texas tried to go in and register their "informal marriage"?

One presumes that if the ruling that the current Texas laws banning same-sex marriage are unconstitutional is upheld, then the County Clerk will have to give them a Declaration of Informal Marriage and they will then be able to complete and file it. Maybe not now because the ruling is stayed pending appeals, but after that process is completed...

[Belgarath]

Andy - ignoring Texas for the moment - my non-lawyer gut reaction is that just adding "legally" is probably a good idea. The determination of what constitutes "legally" married is then based on a state by state determination. It just seems to me that this might help avoid problems such as a "marriage" performed in a state that doesn't legally recognize them even though they now live in a state that recognizes same-sex marriages (so they think they are married), or civil unions where people think they are legally married but are not, etc., etc...

My common sense feeling is that "married" ought to be sufficient, but my paranoid mode leads me to adding the modifier.

FWIW...

[david rigby]

I'm with Andy in preferring to "keep is simple". However, don't forget to determine whether the plan provisions concern:

- the "one-year rule" in IRC 401(a)(11)(D),

- IRS Reg. 1.401(a)-Q&A27 (not relevant to the "election package" in the original post, but relevant at time of distribution).

[Andy the Actuary]

Thank you David. I've revised the wording to provide, "Spousal written consent will be required if you have been married or shacked up with a partner of indeterminate gender for at least one year."

[My 2 cents]

Under normal circumstances, one year ought to be enough to make the determination.

[david rigby]

Interestingly, less than 50% of the plans I see use the "one-year rule".

[GMK]

one year ought to be enough to make the determination.

for some things, maybe. But to say that shacking up with someone whose gender cannot be determined is a marriage, I'm not so sure that one year is sufficient.

[My 2 cents]

From "Six Charlies in Search of an Author", The Goon Show, first broadcast on the BBC on December 26, 1956:

Minister: "I now pronounce you Neddie Seagoon and you Gladys Minkwater man and wife - and leave you to discover which is which."

[gregmk]

Not related to same-sex marriages exactly, but an approach I like is allowing an option for "married but separated" or just "separated." Participants will sometimes check this option, giving the administrator the grounds to inquire further about the legal status of the marriage.