Labor & Employment Law

NYSERS retirement benefits available to member?s same-gender marriage spouse

By Harvey Randall, Esq.

NYSERS retirement benefits available to member?s same-gender marriage spouse
Godfrey v Hevesi, Supreme Court Albany County, Index 5896-06, Judge McNamara [see also Godfrey v. Spano, 15 Misc.3d 809

In October 2004, the State Comptroller advised a member of the New York State Employees? Retirement System [NYSERS] that his Canadian marriage to his same-gender partner would be recognized by the Retirement System under the principle of comity, a legal doctrine that has been followed by New York State courts for many years.

In September 2006, the Alliance Defense Fund sued, alleging that the Comptroller acted unlawfully when he decided to recognize out-of-state same-gender ?marriages? that involve members of the retirement system.

On September 5, 2007 State Supreme Court Judge Thomas J. McNamara dismissed the Defense Fund?s petition, ruling that the Comptroller?s policy with regard to recognizing a same-gender marriage that is lawful in the jurisdiction in which the marriage took place in the same manner as an opposite-gender New York State marriage is recognized is lawful under New York State law.

Judge McNamara said that ?the Comptroller?s decision to recognize same-sex marriages performed in Canada, in accordance with the laws of that jurisdiction, is consistent with New York law regarding the recognitions of marriages performed elsewhere.?

As noted in the January 2, 2007 issue of this publication [2007 PECD 1], this recognition is significant as the surviving spouse of a NYSERS retiree may become eligible to receive certain benefits that are not available to a retiree?s non-spousal partner such as accidental death benefit awarded in certain situations and cost-of-living [COLA] adjustments to a retiree?s retirement allowance.

The Retirement System?s Counsel?s analysis underlying NYSERS? decision recognizing Canadian same-sex marriages is posted on the System?s web site at

http://nysosc3.osc.state.ny.us/press/releases/sept06/marriageopinion.pdf

Consistent with the Comptroller?s position concerning same-gender marriage, effective May 1, 2007, the New York State Department of Civil Service recognized same-gender marriages for the purposes of extending spousal benefits eligibility in the New York State Health Insurance Program (NYSHIP) and for all other benefit programs administered by the Department?s Employee Benefits Division.

Civil Service applies the same standard of eligibility for benefits as does Retirement: any same-sex marriage that is legal in the jurisdiction where it was performed will be recognized by Civil Service for the purposes of eligibility for spousal benefits.

Significantly, all NYSHIP participating entities, including local governments and public authorities [i.e., participating employers], in all programs in which they participate, must recognize same-sex spouses consistent with standard used by the State Department of Civil Service.

At present, the Department of Civil Service recognizes a same-sex marriage for the purpose of spousal benefits eligibility performed in Massachusetts, Canada, including all its provinces, Spain, South Africa, the Netherlands, and Belgium.

Full post as published by New York Public Personnel Law on April 22, 2008 (boomark / email).