Q An employee of an Institution of Higher Learning was married in a state which allows same-sex marriages. The spouse of the employee will give birth to a child in the other state, and a birth certificate will be issued showing the couple as the child’s parents. Is the spouse eligible for enrollment in the State and School Employees’ Life and Health Insurance Plan (“the Plan”)? May the state employee claim the child as a dependent so as to receive benefits under the Plan?

A Under Section 263A of the Mississippi Constitution, a same gender marriage performed in another state “is void and unenforceable under the laws of this State.” Since the Plan states that a spouse eligible for enrollment is a “legal spouse as defined by Mississippi law,” the same-gender spouse is not eligible for enrollment in the Plan. As to the child, it depends on the child’s relationship to the employee, not the child’s relationship to the spouse. A child, under the Plan, includes natural children, stepchildren, legally adopted children, children over whom the enrollee is a legal guardian and children over whom the enrollee has legal custody. The agency or institution must make the factual determination of whether the status between the state employee and the child meets the enrollment requirements for a child under the Plan. Note that this issue may also be governed by various federal laws or regulations governing insurance issues, and the Attorney General’s office does not opine on such matters that are determinable only under federal law. (Attorney General’s Opinion to Upchurch, December 20, 2013)