Earlier this week, I discussed how the landmark Supreme Court decision in United States v. Windsor will result in many employer-related issues in states that do recognize same-sex marriages. What about non-recognizing states? Two federal district courts have begun to address the quandary.

In Ohio, a federal district court adopted the “state of celebration” approach to recognizing same-sex marriages. The case, Obergefell v. Kaish, involved two male Ohio residents who had been living together for more than 20 years and had traveled to Maryland to enter into a legal same-sex marriage. One of the spouses, John Arthur, was in hospice care and expected to die. Because Ohio specifically refuses to recognize same-sex marriages performed in other states, Arthur’s death certificate would have listed his marital status at “unmarried” and his spouse would not be recorded as the “surviving spouse.” The couple sought an injunctive order declaring the Ohio laws forbidding the recognition of same-sex marriages from other states unconstitutional.

The court ruled in favor of the plaintiffs, noting that Ohio recognizes marriages from other states that are not lawful in Ohio (e.g., marriages of first cousins and of minors). As a result, the death certificate will reflect Arthur’s status as “married” and his spouse as the “surviving spouse.”

Likewise, a federal district court in Pennsylvania ruled in Cozen O’Connor v. Tobits that a surviving spouse in a same-sex marriage is entitled to the same survivorship rights as an opposite sex spouse for purposes of an employer’s profit-sharing plan. The couple had been legally married in Toronto and the court found that the term “‘spouse’ is no longer unconstitutionally restricted to members of the opposite sex, but now rightfully includes those same-sex spouses in ‘otherwise valid marriages.’” At the time of the spouse’s death, the couple lived in Illinois and the court relied on Illinois law for their ruling, which recognizes same-sex marriages performed in other states as civil unions. It is unclear how the court would have ruled if the state did not recognize same-sex marriages as civil unions.

These two cases, while just a small sampling of the cases that are likely to come forth in the wake of Windsor, show that the trend may be for federal courts to conclude that same-sex couples do not lose their marriage-based rights, including employee benefits, even if they reside in a non-recognizing state. Employers should review the use of “spouse” in their policies and benefit programs to determine if they will, or are required to, extend employer-related benefits to same-sex spouses. In short, there is no clear rule on how to treat legally married same-sex couples residing in a non-recognizing state. As Obergefell and Tobits illustrate, employers and agencies are vulnerable to challenges by same-sex couples and should strongly consider revising their applicable policies accordingly.