Perfect exam problem: who gets the estate when Canadian same-sex marital partner dies in a state that doesn’t permit gay marriage?

Suppose a law firm partner of a Philadelphia law firm whose job is in Chicago, marries her sweetie in Canada, and then, sadly, only a few years thereafter, dies of cancer at age 37?  Who gets her law firm profit-sharing account: her parents or her spouse?

That’s what happened in a case that has put the Pennsylvania law firm of Cozen O’Connor in the midst of a battle between the parents of Sarah Ellyn Farley and her wife, Jennifer Tobits, to whom she was validly married in Canada in 2006.  According to an article in the ABA Journal by Martha Neil, the parents claim that they are entited to the money, because their daughter executed a beneficiary designation form in their favor shortly before she died. They claim that the marriage wasn’t valid in Pennsylvania or Illinois.  The firm apparently says that the beneficiary form lacks a necessary signature and has asked the courts to determine who gets the money.

What a great exam question — of course, it would have to be a take home, because one would need to reasearch whether Illinois and Pennsylvania recognize validly performed marriages from other jurisdictions, as New York’s courts have.  That turns on whether such marriages — even when valid — offend the important and deeply held public policies of the state (in this case Illinois or Pennsylvania). … <Read More>