NY State Employees Win Recognition for Canadian Marriages

October 12, 2004

New York state employees who married their same-sex partners in Canada will have those marriages treated by the New York State and Local Retirement System in the same way as heterosexual marriages. It is the first time that married gay and lesbian couples in New York have been recognized by a state agency.

The decision was made by New York State Comptroller Alan G. Hevesi, whose office has jurisdiction over the retirement system. It was communicated in a letter dated October 8, and made public today, from the Comptroller to Mark Daigneault, a state employee who wrote in September asking how getting married in Canada would affect retirement benefits for him, his same-sex partner and their two children.

In Comptroller Hevesi's letter, he tells Daigneault, Based on current law, the Retirement System will recognize a same-sex Canadian marriage in the same manner as an opposite-sex New York marriage, under the principle of comity. That principle has been legal practice pursuant to New York Court of Appeals rulings for many years.

The response to Daigneault, which includes a cover letter from Hevesi and an accompanying letter from Counsel to the Retirement System George S. King, provides the legal history and justification behind the Comptroller's decision and describes how being married will affect Daigneault's retirement benefits. The letter also details the rights of current and former spouses in regards to retirement benefits.

I am happy to learn that my family will be given the same support and protection that all other families receive through the retirement system, Daigneault said Wednesday.

As a dad and a spouse, I want to protect the ones I love in every way possible. I'm glad the Comptroller recognizes that all families need the same protections.

Daigneault is an employee with the New York State Insurance Department and is in a long-term committed relationship of thirteen years with his same-sex partner. They are raising two adopted children.

The news was welcomed by Empire State Pride Agenda which has been lobbying for state recognition of same-sex couples.

We are very happy for Mark and his family and for all government employees who participate in the New York State and Local Retirement System and are members of a same-sex couple, said Alan Van Capelle, Pride Agenda's Executive Director.

Every government entity, every employer, every organization that deals with marriage in New York should be taking the same position, Van Capelle said.

It also happens to be the pro-family thing to do, continued Van Capelle. It ensures that all families in New York have what they need to take care of themselves, particularly in times of crisis like the death of the main provider for the family.

The letter to Daigneault details benefits the retirement system ties to marriage. One is an accidental death benefit awarded to a surviving spouse in certain situations. The benefit provides the surviving spouse regular payments for the remainder of their widowhood. Surviving domestic partners are not eligible for this benefit. Another retirement system benefit made available to surviving spouses is a Cost Of Living Adjustment (COLA) to the monthly pension payment they receive. The COLA is extended only to spouses and not to surviving domestic partners or any other beneficiary.

The letter also covers the legal obligations of marriage and how they affect Daigneault's benefits. Should a retirement system participant get a divorce, their pension becomes a marital asset and the spouse may have rights to it in any settlement. That would be equally true for a same-sex spouse involved in a divorce.

A statewide poll on same-sex marriage conducted in March by Global Strategy Group for the Pride Agenda revealed that 80% of New Yorkers believe extending the same pension benefits to same-sex couples is important.

Over the past year, hundreds of same-sex couples have traveled to Canada to get married, said the Pride Agenda's Ross Levi. They have returned home and are now 100 percent legally married in New York State. They are asking their employers, their local governments, their state and companies they do business with to respect and honor their marriage and many of these public and private players are responding by saying, 'Yes you're married.'

Comptroller Hevesi's decision is the latest in a series of decisions by elected officials, courts and companies across New York State to treat legal out-of-state marriages of same-sex couples the same way they treat other out-of-state marriages.

On March 3 of this year, Attorney General Eliot Spitzer citing New York's comity law said that marriages of same-sex couples performed elsewhere are completely valid in New York State and must be treated as such. In 2003, a New York County Supreme Court ruled in Langan v. St. Vincent's Hospital of New York in terms of authorizing wrongful death actions that spouse can also mean a surviving same-sex partner to a Vermont civil union.

After Attorney General Spitzer's March statement, elected officials in the municipalities of Nyack, Ithaca, Buffalo, Brighton and Rochester followed suit and fully recognized legal out-of-state same-sex marriages, giving them the same rights as all other marriages within their local jurisdictions. In Rochester, for example, surviving spouses of veterans, including same-sex spouses, are entitled to certain types of city licenses and property tax exemptions.

In the private sector, Lambda Legal has reported that Allstate, State Farm, Geico and Electric automobile insurance companies have agreed to comply with state law and respect the marriages of same-sex couples, providing them with the same rates and coverage as married opposite-sex couples. According to Lambda Legal, Allstate, State Farm and Geico together provide insurance to a third of all drivers in the state.

Clearly, acceptance of same-sex marriage is becoming a trend in New York State. said the Pride Agenda's Van Capelle. When New Yorkers see what it means to be married on a very practical level and how marriage protects children and supports families, the overwhelming majority come down on the side of equality and respect for all families, including LGBT families.