With the U.S. Supreme Court’s recent holding on the Defense of Marriage Act, my thoughts turned to use in contracts of the words husband, wife, and spouse.
But I wasn’t about to tackle that on my lonesome, no siree. Instead, I asked Dan Schwatz—he of the Connecticut Employment Law Blog—for his thoughts.
My opening question for Dan was whether use of those words in a contract is purely a private matter, or whether laws that relate to marriage status are always implicated. He took it from there:
Whenever a contract grants rights to, or withholds rights from, the spouse of a party, typically you’d have to take into account what state law provides. For example, if a contract between Acme, a hotel chain, and John Doe, a consultant, is governed by Connecticut law and it says that Acme will provide a benefit (say, ten free nights) to Doe’s wife, under Connecticut law as it now stands, Acme couldn’t decline to provide those benefits to Doe’s same-sex spouse.
Connecticut was one of the first states to recognize—by statutes—same-sex marriages. And it did so very broadly, by means of a general catchall: “Wherever in the general statutes or the public acts the term ‘husband’, ‘wife’, ‘groom’, ‘bride’, ‘widower’ or ‘widow’ is used, such term shall be deemed to include one party to a marriage between two persons of the same sex.” And just like, that any distinctions between husband and wife, groom and bride became meaningless, at least in terms of the law.
Connecticut law further defines marriage as just a union between two “persons”—making it gender neutral.
So in effect, Connecticut’s state law recognizing same-sex marriage will treat the words husband and wife in contracts as spouse, whether of the same or opposite sex.
But how this plays out in a given contract will depend on the state law governing the contract. In its DOMA holding, the U.S. Supreme Court didn’t address whether states are required to recognize a same-sex marriage performed in another state. So as things stand, Arkansas, for example, isn’t required to recognize a Connecticut couple’s same sex marriage.
Using my Acme example, it follows that if the contract is governed by Arkansas law, Acme wouldn’t have to provide the specified benefits to John Doe’s same-sex spouse.
And if federal law somehow comes into play, then typically spouses in a same sex marriage will be eligible for spousal rights and obligations in federal programs, as a matter of enforcement for the federal government. Issues of federal law, though, rarely come into play for basic contracts; even international agreements typically include a choice-of-law provision.
As a practical matter, over the years I’ve seen a shift—particularly in employment policies—from referring to an employee’s spouse (by means of husband or wife) to referring to the employee’s status as “married” or “in a civil union.”
With the U.S. Supreme Court’s DOMA decision, we’re slowly moving towards a more unified system but we’re not there yet. That being the case, it makes sense to drop husband and wife in favor of spouse. That might offend those who are against same-sex marriage, but as a matter of law, it should always work, and that’s what most contract drafters should be most concerned about. A choice of law provision will also help clarify what state law should apply.
Mind you, even the media sometimes use husband and wife in the context of same-sex marriage, and in interviews same-sex couples have pondered who among them, if anyone, will be the husband or the wife. Even the AP Stylebook was revised to take this flux into account.
We continue to live in a time of uncertainty but contract drafters can avoid such uncertainty by taking certain steps now.