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). 

Pennsylvania’s mini-DOMA reads like this:

It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.

But Illinois’s only adds the following language to its designation of prohibited marriages (along with its incest prohibitions):  

(5) a marriage between 2 individuals of the same sex.

(b) Parties to a marriage prohibited under subsection (a) of this Section who cohabit after removal of the impediment are lawfully married as of the date of the removal of the impediment.

This provision says nothing whatever about recognition of out-of-state marriages or strong public policy, and Illinois is where Jennifer worked.  And there doesn’t appear to have been any reported litigation under it, although I haven’t done a thorough search.  

And then there is the increasingly, hotly-contested question of whether mini-DOMAs like these are constitutional anyway, singling out, as they do, same-sex couples for denial of many critically important government benefits.  Growing numbers of cases have been filed contesting marriage denial as violating the Constitution’s Full Faith and Credit clause, and on equal protection grounds.

Of course,  the wording of the profit-sharing plan might make a difference if there exists a valid beneficiary designation in favor of Jennifer, individually and not as a marital partner.   But if the plan defaults to spouse for those who make no designation, or Sarah Ellyn designated “my spouse, Jennifer”, then Jennifer’s got a problem.  And if she designated “my estate” and left no will, then intestate succession will govern, and we are back to determining whether Jennifer is a recognized spouse.

And then there’s the question of the validity of the beneficiary designation the parents say Sarah Ellyn signed before she died.  Without a needed signature, is it valid?  And might it have been signed under duress, or when Sarah Ellyn lacked capacity to sign it? 

No wonder the law firm asked the courts for help!!!

Of course, an A exam would mention checking out the possibility of mediation.  After all, it’s only money, which is easily divisible, which makes it easier to “split the baby” if grief, betrayal and sore feelings can be set aside.  It’s a good thing Jennifer and Sarah Ellyn had no children — those are much harder to split!