Hoeppner Wagner & Evans LLP

Spouse Includes Same Sex Marriage


In United States v. Windsor, the Supreme Court held unconstitutional, Section 3 of the Defense of Marriage Act's definition of marriage under federal law as the union of a man and woman. As a result of the case, federal laws providing rights to "spouses" had to be revised.

The Department of Labor has responded by adopting new regulations under the Family Medical Leave Act ("FMLA"). Under the regulations, for purposes of taking FMLA leave to care for a spouse, the term 'spouse' would be interpreted to mean 'a husband or wife as defined or recognized under the law of the state where the marriage was celebrated, including same sex marriage.

As a result of this definition, eligible Indiana and Illinois employees will be able to take FMLA leave to care for their lawfully married same-sex spouse with a serious health condition. Additionally, these same employees will be able to also take qualifying emergency leave due to their lawfully married same-sex spouse's covered military service.

The expansion of FMLA rights to same sex marriage also extend to an employee's right to take military caregiver leave for their lawfully married same-sex spouse. Finally, eligible employees will be able to take leave to care for a stepparent who is in a same-sex spouse marriage with the employee's parent.

If you have questions regarding same-sex marriages, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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