Can a Same Sex Partner in Illinois Now Become a Surviving Spouse Under Your Pension?

After Illinois’ recent passage of the Religious Freedom and Civil Union Act, some Chicago and Illinois workers are wondering whether, or even assuming that, their same sex partners will be financially provided for in the event the worker predeceases the partner. As is often the case, the answer is maybe. The Illinois law provides couples in a civil union with the same rights and benefits as those that married couples have, such as hospital visitation rights, the ability to make medical decisions, adoption and parental rights, inheritance rights, and some pension benefits. What is critical, however, is whether the pension rights are created by state law or by ERISA.

In 1996, the United States Congress passed, and President Clinton signed, the Defense of Marriage Act. Under that federal law, for purposes of any other federal law, marriage is defined as being between one man and one woman. So if your pension is provided by a private employer such as an airline, auto manufacturer, or by your union, then the Civil Union Act will not allow your same sex partner to become a “surviving spouse” entitled to continued payment of your pension if you pass away because such pensions are governed by ERISA, a federal law. The same can be said for Social Security Benefits. However, if you are one of the over 200,000 state or municipal workers in Illinois who will receive a pension, then yes, your same sex partner can become a “surviving spouse” under your pension if you enter into a civil union. If you need to know what law governs your retirement plan, contact an experienced ERISA lawyer today.