More details to this question:
My partner and I married in NYC. We live in NJ. He was laid off 4 years ago, and his pension was closed until he retires. He went back to work for the same company and could not re-open that pension so they started a new one in which he could designate a beneficiary, whereas his main pension he could not. If he dies before retirement, am I eligible to receive his pension since we live in a state that has not yet recognized same sex marriage (only civil unions)
1 ANSWER
That is a very good question which I don't believe is 100% settled yet. In a recent Supreme Court case, a married lesbian was held entitled to the same federal estate tax benefits on the inheritance from her dead spouse as any heterosexual spouse would be, and the Defense of Marriage Act which provided that the Federal government would not recognize same sex unions was held to be unconstitutional. However, this decision did not foreclose the possibility of individual states making their own laws about same sex unions and related matters. In your case, you are asking if NJ will have to recognize a NY marriage for purposes of NJ inheritance law. In my opinion the answer should be yes, based on the full faith and credit provision of the US constitution, but, again, I don't think the Supreme Court has settled that question yet. In the back of my mind, I think that there may be some precedent for not applying full faith and credit to marriage issues (arising from old cases where states granted divorces without residency requirments, or with limited residency requirements, and other states refused to recognize the divorce), so the issue may be in doubt. In other words, whatever Justice Kennedy decides.
Answered on Oct 18th, 2013 at 3:37 PM