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Even though marriage for same-sex couples is legal in several states, marrying in a state that recognizes such a thing doesn’t obviate the need to take care of your estate planning and other legal matters in the “old fashioned” way (contractually, using beneficiary designation forms, a will etc) if you live in a state that doesn’t recognize marriages of same-sex couples.

All of us need to learn this lesson – and lawyers, a group you might think would already know better, need be reminded of this legal fact as well.  Many, many of us leave our wills, powers of attorney, and other important legal documents completed but unsigned at our attorneys’ offices, thinking we’ll get to it, well, whenever.  But things happen.  Bad things can happen.  And being married in a state different from the one in which you live does not obviate the necessity to sign these documents should a bad thing happen to you or your partner/spouse.

Here’s an important reminder of why getting these documents finalized is important:

Death of Female Partner Puts Cozen Firm in Center of Same-Sex Marriage Comity Case

from the ABA Journal

The death of a female partner of Cozen O’Connor has put the law firm in the center of a dispute over a cutting-edge same-sex marriage issue—whether a marriage that is legal in one jurisdiction should be recognized as valid in another in which the parties would not have a right to wed.

After Sarah Ellyn Farley, 37, died of cancer in September, her parents contended that they are entitled to her profit-sharing account. However, her wife, Jennifer Tobits, to whom she was legally married in Toronto in 2006 also is claiming that she is entitled to the proceeds of the account, according to a Chicago Tribune obituary and a Legal Intelligencer article reprinted in New York Lawyer (reg. req.).

Philadelphia-based Cozen O’Connor has filed an interpleader action in federal court in Pennsylvania to determine to whom the account should be paid out. Farley worked out of the firm’s Chicago office.

Farley’s parents argue they are entitled to the money based on two alternative theories, according to the Legal Intelligencer:

First, they say she executed a beneficiary designation form in their favor shortly before her death, although the law firm says it lacks at least one requisite signature. Second, they say their daughter’s marriage was invalid under Illinois and Pennsylvania law and hence, since there is no surviving spouse, they are legally entitled to the money as Farley’s surviving parents.

Clearly Farley’s parents never recognized Farley’s marriage to or relationship with Jennifer Tobits.  In fact, their denial of the relationship went so far that they planned on cutting Jennifer out of their daughter’s estate in the days before Ellyn’s death.  According to media reports, shortly after Ellyn’s death her parents, David and Joan Farley, presented a designation of beneficiary form to the law firm, purporting to show they were designated as the beneficiaries. The unsigned form listed Ellyn’s marital status as single and was dated the day before she died.

This is a situation familiar to the lesbian and gay community: the parents of a lesbian or gay child swoop in after the child’s death and maintain that they are the child’s only heirs – even when they are fully aware of the child’s long-term committed relationship with or even marriage to another person of the same sex.  Designating your partner/spouse as your beneficiary on work, insurance and other forms as well as in a will and powers of attorney can secure against this sort of overreaching by unsupportive parents in most cases.  My friend Judith Turkel, of the law firm Turkel, Forman and de la Vega, specializes in this sort of estate planning in the l/g/b/t community in New York.  Go see her if you haven’t taken care these documents.  Of course, unlike Illinois where Farley and Tobits lived, New York officials say they’ll recognize out of state marriages even though New York law does not yet allow marriage of same-sex partners.

By the way, Ellyn Farley seemed like a really lovely person, and it’s a terrible thing that her parents have filed this action challenging the survival rights of her partner/wife.  This short documentary about her, made shortly before her death from cancer, is a lovely tribute:

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7 comments

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