The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5275

March 7, 1978

RETIREMENT & PENSIONS:

Beneficiaries dependent upon member for financial support

HUSBAND & WIFE:

Entitlement to pension based upon dependency

CONSTITUTIONAL LAW:

Equal protection based upon sex

EQUAL PROTECTION:

Discrimination based upon sex

The administrators of a retirement system may not, in determining dependency as an eligibility for retirement benefits, apply a presumption that a wife is dependent upon her husband so that a married woman who is a member of a retirement system must prove the dependency of her husband whereas a married man need not prove the dependency of his wife.

Honorable H. Lynn Jondahl

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on a question which may be stated as follows:

'Is the practice of the Municipal Employees' Retirement System, in applying 1945 PA 135, Sec. 51a, MCLA 38.651a; MSA 5.4051(1), which practice presumes a wife to be dependent upon her member husband regardless of her income, while requiring the husband of a member wife to prove his dependency, upon election of Option II, valid?'

1945 PA 135, Sec. 51a, supra, states in pertinent part:

'(a) A member who continues in the employ of a participating municipality after the date he either (1) acquires 25 or more years of credited service, or (2) attains age 60 years and acquires 10 or more years of credited service, at a time prior to the date his retirement becomes effective, may elect option II provided in section 51 and nominate a beneficiary whom the board finds to be dependent upon the member for at least 50% of his support due to lack of financial means. . . .' (emphasis added)

It may also be noted that 1945 PA 135, supra, Sec. 2(h-l) provides:

"Beneficiary' means a person, other than a retirant, who is in receipt of or who is designated to receive a retirement allowance or other benefit payable by the retirement system.'

The terms of the above quoted statutory provision make no distinction between male and female members of the Municipal Employees' Retirement System. However, in applying this provision, the administrators of the system have adopted a presumption that a wife is dependent upon her husband. Thus, a married woman who is a member of the retirement system must prove the dependency of her husband, whereas a married man who is a member of the retirement system need not prove that his wife is dependent.

The United States Supreme Court, in Frontiero v Richardson, 411 US 677; 93 S Ct 1764; 36 L Ed 2d 583 (1973), considered a similar problem concerning increased quarters allowances and medical benefits for dependents of members of the uniformed services. The wives of servicemen were automatically considered dependents, while husbands of servicewomen were required to prove their dependency, as expressly provided for in the statute in question. The government conceded that the reason for the statutory distinction was administrative convenience, since as a general rule wives are financially dependent on husbands but rarely are husbands financially dependent on wives.

The Court stated:

'. . . [A]ny statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands 'dissimilar treatment for men and women who are . . . similarly situated,' and therefore involves the 'very kind of arbitrary legislative choice forbidden by the [Constitution]. . . ."

411 US at 690, 93 S Ct at 1772, 36 L Ed 2d at 594

The Court held, therefore, that the requirement that a servicewoman prove the dependency of her husband was violative of the Due Process Clause of the Fifth Amendment.

Subsequently, in Weinberger v Wiesenfeld, 420 US 636; 95 S Ct 1225; 43 L Ed 2d 514 (1975), the Court ruled that the statutory provision affording social security spouse benefits to surviving widows, but not to surviving widowers, was indistinguishable from the invalid gender-based statutory distinction in Frontiero, supra. Further, the Court noted the similarities of discrimination claims under the Due Process Clause of the Fifth Amendment to be comparable to claims under the Equal Protection Clause of the Fourteenth Amendment. Weinberger, supra, 420 US, at p 7 n 2, 95 S Ct at p 1228 n 2; 43 L Ed 2d at 519 n 2.

It is my opinion that the administrative practice of applying 1945 PA 135, Sec. 51a, supra, in a manner that presumes a wife to be financially dependent upon her member husband, while requiring the dependency of her husband of a member wife to be proven, is invalid under both the language of Sec. 51a, which makes no such gender-based distinction, and the decisions in Frontiero and Wiesenfeld, supra. Rather, all those members who elect Option II must be required to demonstrate to the Municipal Employees' Retirement Board that the named beneficiary is dependent upon the member for at least 50% of his or her support.

Frank J. Kelley

Attorney General