While these precedents resulted in private pension plans adjusting policies to accommodate same-sex couples, some did so only on a go-forward basis, leaving behind surviving partners of plan members who retired and passed away prior to these amendments.
Even though plan sponsors would have amended their plans in accordance with the law when it changed as a result of those judicial decisions, they might not have amended their plans retroactively to recognize same-sex survivors and would continue to administer the plan based on the terms as they existed at the time of the member’s retirement. It appears that’s essentially what happened at [CN Rail].
While married couples are easier for plans to identify when determining eligibility for retroactive benefits, common-law relationships pose more of a challenge and often puts the onus on the plan member.
As a practical matter, what many plan administrators currently do is have members sign a declaration at the time of retirement stating they have a spouse that qualifies. . . . That would be the only way to do it—to canvas retirees or look back at your records to determine whether anyone had come forward. Those are difficult issues for sure.