New York Department of Insurance Recognizes Same-Sex Marriages
On November 21, 2008, the New York Department of Insurance issued Circular Letter No. 27(2008) that acts as the New York State department of Insurance recognition of same-sex marriages performed in other jurisdictions. The letter is in response to Martinez v. Monroe Community College, recognizing a Canadian same-sex marriage as valid in New York. Governor Patterson issued a memo requiring state agencies to formulate policies to comply with this ruling and the department of insurance has now done so.
The letter has the effect of requiring that policies of insurance written in New York and insurers of those policies provide that the terms "spouse," "husband," "wife," and "married" encompass marriages of same-sex couples married in jurisdictions outside of New York. Employers who offer health insurance are obligated to provide same-sex benefits but it does not require employers who sponsor self-insured or self-funded plans to provide that same coverage. So if your plan is an insured plan from a New York insurer, your plan now provides same-sex couples benefits if they are married outside of New York.
While not unexpected, this letter did cause me a little pause mostly because it does not in any way deal with dependents of same-sex spouses or make any mention of the definition of "dependent" or "child." How would New York treat the child of a same-sex couple married outside of New York, when the status of the child as a dependent of both parents has not been established? Say, for example, partner A has a child and marries partner B. They move to New York. Partner B has health insurance through his or her employer but never adopts the child. The child may not qualify as a dependent of B under the terms of the policy, leaving the child with no coverage while both A and B are insured.
Clearly this would not be an issue of B adopts the child, or A and B are both declared the legal parents (or even legal guardians in some surrogate proceeding), but this continuing struggle over status of same-sex partners seems to consistently overlook the dependent status of children. For benefits purposes, the definition of dependent generally covers children that would be classified as dependents under the IRS standards, but simply declaring coverage for same-sex spouses leaves open confusion about how to treat children of the relationship. Likewise, plans that determine to provide same-sex benefits should clearly define how coverage will be offered to children of the relationship to clarify dependent status.
As a related side note, I strongly encourage same-sex couples who have children or who are considering having children to contact a competent family law attorney to discuss the options for dealing with children as dependents, either for tax purposes or for benefits concerns. In states that do not recognize same-sex marriage (or that recognize it tangentially), children can create very confusing situations. I recommend Rhonda Ores, an attorney here at Fox Rothschild and she would be happy to discuss it with you.
