New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

The Office of General Counsel issued the following informal opinion on December 20, 2001, representing the position of the New York State Insurance Department.

RE: Insurance Coverage Under a Family Medical Plan for a Common Law Spouse and Children Born Prior to the Common Law Marriage.

Questions Presented:

1. May a common law spouse be eligible for coverage as a dependent under a family medical plan?

2. May the children of a common law spouse, who were born prior to the common law marriage, be eligible for insurance coverage as dependents under a family medical plan?

Conclusions:

1. Yes.

2. Yes.

Facts:

The inquirer is a third party administrator that administers the benefits of a group supplemental medical plan issued by a licensed insurer. It received an inquiry from a New York resident who has a common law spouse and is enrolling in this plan through an employer. The inquirer asked whether a common law spouse and/or the children of the common law spouse, who were born prior to the common law marriage, can be eligible for insurance coverage as dependents under a family medical plan.

Analysis:

At the outset it should be noted that although New York abolished common law marriages pursuant to Ch. 606 of the Laws of 1933, it will recognize a common law marriage that is contracted in a sister state, provided that it is valid where contracted. See Matter of Mott v. Duncan Petroleum Trans., 51 N.Y. 2d 289 (1980); Potter v. Davie, 275 A.D. 2d 961 (4th Dep’t. 2000); Tenzer v. Tucker, 154 Misc. 2d 468 (Sup. Ct. Nassau County 1992).

N.Y. Ins. Law § 3216(c)(3)(McKinney 2000) applies to individual accident and health insurance policies issued by commercial insurers and permits the policy to insure "members of a family" which is defined as husband, wife, dependent children, "or any other person dependent upon the policyholder." (emphasis added).

N.Y. Ins. Law § 4235(f)(1)(McKinney 2000) applies to group accident and health insurance policies issued by commercial insurers and provides as follows:

(f)(1) Any policy of group accident, group health or group accident and health insurance may include provisions for the payment by the insurer of benefits for expenses incurred on account of hospital, medical or surgical care or physical therapy by licensed physical therapists upon the prescription or referral of a physician for the employee or other member of the insured group, his spouse, his child or children, or other persons chiefly dependent upon him for support and maintainence . . . (emphasis added).

N.Y. Ins. Law § 4305(c)(1)(McKinney 2000), which applies to group contracts issued by non-profit health insurers, contains a similar provision. Pursuant to N.Y. Pub. Health Law § 4406 (McKinney 2000), section 4305(c)(1) is also applicable to group contracts issued by Health Maintenance Organizations.

N.Y. Ins. Law § 4304(d)(1)(McKinney 2000) applies to individual policies issued by non-profit health insurers and permits a "family contract" under which expenses are paid on behalf of a "husband and wife, or husband, wife and their dependent child or children, or any child or children not over nineteen years of age . . ."

In the present case, the common law spouse would be viewed as the legal spouse of the insured, provided that a valid common law marriage exists. Thus, an insurer may extend coverage to a common law spouse under a family medical plan.

With respect to the inquirer’s second question, N.Y. Ins. Law §§ 4235(f)(1) and 4305(c)(1)(McKinney 2000) provide that coverage may be extended to the insured’s child, children or other persons chiefly dependent upon him for support and maintainence. Moreover, N.Y. Ins. Law § 3216(McKinney 2000) permits coverage for dependent children or any other person dependent upon the policyholder. Thus, if the children are not the insured’s children, they may be covered under the family medical plan, provided that they are persons dependent or chiefly dependent upon the insured for support and maintenance. If this is an individual health insurance policy issued by a non-profit health insurer, the children of the common law spouse may be covered under the family medical plan, provided that they meet the requirements of N.Y. Ins. Law § 4304(d)(1) (McKinney 2000).

If the children are the insured’s children, they would be covered as such under the family medical plan. The fact that the children were born prior to the common law marriage does not preclude them from being covered as dependents under the family medical plan. N.Y. Ins. Law § 2608-a(a) (McKinney 2000) prohibits employers, interalia, from denying enrollment to a child under the health coverage of the child’s parent on the ground that the child was born out of wedlock.

For further information, you may contact Attorney Pascale Joasil at the New York City office.