In United States v. Windsor, the Supreme Court of the United States ruled that Section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional. Section 3 of DOMA limited the definition of “spouse” to a person of the opposite sex who is a husband or wife. That restriction is no more. The Supreme Court found that “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal” both in responsibilities and rights under the law. Whereas the same-sex couple was married for state law, they were unmarried for federal law. Accordingly, DOMA’s definition of “spouse” was unconstitutional.
How could the Windsor decision affect Longshore and Harbor Workers’ Compensation Act (“LHWCA”) claims? Most notably, Section 9 death benefits are likely available for the surviving same-sex spouse of a legally binding marriage.
The LHWCA defines “widow or widower” to include “only the decedent’s wife or husband living with or dependent for support upon him or her at the time of his or her death; or living apart for justifiable cause or by reason of his or her desertion at such time.” Death benefits are available to widows or widowers at the rate of 50% of the decedent’s average weekly wage. In many cases, this can be a sizeable sum.
To be sure, the Department of Labor (“DOL”) has already taken steps to address the Windsor decision. A statement on the Division of Federal Employees’ Compensation’s (“DFEC”) website reads:
On June 26, 2013, in United States v. Windsor, the U.S. Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. Section 3 of DOMA limited the definition of spouse to a person of the opposite sex who is a husband or wife, and as a result, augmented FECA compensation was not available based on a claimant’s same sex spouse. The FECA program has long followed the policy that the validity of marriage is determined by the law of the jurisdiction where the marriage took place. See FECA Program Memorandum 156 (issued May 30, 1972). Thus, consistent with our existing procedures and the Supreme Court’s decision in Windsor, claimants who can establish a same-sex marriage valid in the jurisdiction where it took place will be eligible for augmented FECA benefits based on that marriage regardless of their place or residence or domicile.
While the Division of Longshore and Harbor Workers’ Compensation’s (“DLHWC”) website has not yet published the DOL’s position on the effect of Windsor on the availability of Section 9 death benefits, it is not a stretch to assume that the DOL will support LHWCA death benefits for same-sex marriages. After all, what is good for the DFEC should be good for the DLHWC.
This assumption is bolstered by another technical release from the DOL. On September 18, 2013, the Employee Benefits Security Administration issued Technical Release No. 2013-14, entitled “Guidance to Employee Benefit Plans on the Definition of ‘Spouse’ and ‘Marriage’ under ERISA and the Supreme Court’s Decision un United States v. Windsor.” The Technical Release makes clear that the term “spouse” will include individuals lawfully married under any state law, including same sex couples. Further, the term “marriage” includes a “same-sex marriage that is legally recognized as a marriage under any state law.” Of course, there are some caveats. For instance, the terms “spouse” and “marriage” do not include individuals (either same sex or opposite sex) in a formal relationship that is not a marriage, but instead a civil union or domestic partnership. Also, if the marriage is “valid in the state in which [it was] celebrated,” then the domicile of the married couple is irrelevant, even in a state that does not recognize same sex marriages.
This “celebration” rule could eventually be challenged, despite the practical usefulness of a uniform rule–as discussed by Dale Carpenter on The Volokh Conspiracy. But the Department of Labor is not the only federal agency to enact a “celebration rule.” The Internal Revenue Service “recognizes the validity of a same-sex marriage that was valid in the state where it was entered into, regardless of the married couple’s place of domicile.” See Internal Revenue Bulletin 2013-38.
Accordingly, there are some issues to keep in mind when determining whether benefits are owed to a same-sex surviving spouse. First, the legality of the underlying same-sex marriage must be ascertained. This must be determined in accordance with state law, with the focus placed on the state where the marriage was entered into (i.e. where it was celebrated).
Second, the LHWCA requires more than a legal marriage. A surviving spouse must be living with or dependent upon the decedent for financial support, unless the surviving spouse was living apart for justifiable cause or desertion. Without a conjugal nexus, death benefits are not owed. Consequently, when considering whether a same-sex spouse is entitled to death benefits, due consideration must be paid to the legality of the marriage and the existence of a conjugal nexus. See, e.g., Omar v. Al Masar Transp. Co., BRB N0. 11-0809, 2012 WL 2520756 (2012) (published) (denying death benefits to the legally married wife due to the absence of a conjugal nexus).
In conclusion, the writing is on the wall. Provided that a same-sex surviving spouse can satisfy the post-Windsor definition of “spouse,” as well as the LHWCA’s definition of “widow or widower,” federal death benefits under the LHWCA or its extensions will likely be available to that surviving spouse.