Use of “Spouse” in Business Contracts

Reader Jonathan Handel—he of the Digital Media Law Blog—sent me the following interesting inquiry:

I’m wondering if you have any thoughts in regards to a gay rights issue related to drafting various corporate documents. This question may be on the edge as to whether it’s a drafting issue or a substantive one, but I figured I’d ask your thoughts.

In any case, the issue is this: the concept of “spouse” arises in some of these typical corporate documents. For instance, an investment in illiquid securities of a closely-held co. may require that a Spousal Consent be executed. Or, a shareholder agreement or LLC operating agreement may prohibit transfers of shares or units to third parties, but with a carveout for “spouses.”

After reviewing some of these corporate docs, it occurred to me that the forms should probably be revised to also encompass (1) spouses in same-sex marriages, (2) (registered?) domestic partners, and (3) (registered?) civil union partners. This is because state law in some states, such as Cal., grants people in these relationships the same rights (and responsibilities) as married couples.

So, my question is, do you have any recommended or consensus language in this area? Any help would be appreciated.

I have no expertise in this area. Readers, I encourage you to weigh in.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.