Considerations for WTC victims who were in a same-sex, or unmarried, relationship

Under current law, civil marriage is the touchstone for a vast array of state and private protections in times of crisis. This piece addresses the special difficulties that those in unmarried relationships might face, with a focus on same-sex partners. Similar -- though not identical -- considerations will apply for different-sex, unmarried partners. If you have questions or a client in this situation, please contact Jennifer Middleton at Lambda Legal Defense and Education Fund for more information.

In short, no state currently recognizes the marriages of same-sex couples. Therefore, the basic social safety net that is available to heterosexual couples through marriage is largely unavailable to same- sex couples. Even so, some sources of support are available from the state, city, and private entities. You also might be able to invoke anti-discrimination requirements under New York City law to assist you in securing equal treatment for your clients. Strong advocacy on behalf of your clients frequently requires educating decision makers about the committed nature of their relationship, their mutual interdependence as a family, and the hurdles they might have faced in securing legal recognition of their relationship.

Unmarried partners are eligible for some sources of financial support

Crime Victim's Board relief funds: An Executive Order issued by Governor Pataki in the wake of the WTC disaster extends to surviving partners of gay victims equal benefits as spouses from the state's Crime Victim's Board. The order marks the first official step taken by any level of government in the nation to address the inequities faced by gay and lesbian survivors of the terrorist attacks in obtaining benefits.

Under the order, a gay partner will qualify for benefits to help offset the loss of household income resulting from the death of his/her partner by demonstrating that the he or she and the deceased were "mutually interdependent" (e.g., common householding or shared budgeting). A survivor will be entitled to up to $30,000 from this program. The application process is explained more fully elsewhere.

The American Red Cross: The Red Cross has stated that eligibility for benefits will be based on a broad and inclusive definition of family, which includes the committed relationships and domestic partnerships of many couples who are living together. Reports from some individuals seeking relief from the Red Cross, however, show that the practice of administering this policy has been uneven. If your client faces difficulty receiving benefits from the Red Cross, please call Lambda or the Empire State Pride Agenda.

Other private agencies and employers: Many private organizations and employers are providing various kinds of relief to surviving family members of those killed in the WTC. Each has its own policies for determining eligibility.

To the extent they are operating within New York City, however, these private entities could be governed by the New York City Human Rights Law. That law prohibits discrimination on the basis of marital status and sexual orientation. It was recently interpreted to require that couples in domestic partnerships be treated the same as married couples, absent a business necessity for differential treatment. Please contact Lambda if your client has faced disparate treatment by a private entity in New York City.

* Formal "domestic partnership" is not necessarily a pre-requisite for proving a family relationship between unmarried partners.
The term "domestic partner" is used differently in many different contexts, and you should be aware of its various meanings and legal ramifications. The critical concept to remember is that your client need not have been formally acknowledged as a "domestic partner" whether by a private company, public employer, or a city or local government to prove a family relationship with the deceased.

Many private companies and public employers offer some benefits, such as health insurance, to the "domestic partners" of their employees. These benefits may be available to same-sex partners only, or they may be available to both same-sex and different-sex partners. While participation in such a program is useful evidence of the relationship, it is not a guarantee of equal treatment by the employer in other benefit programs. It is also not a necessary pre-condition for proving a family relationship. This is because many couples that have committed family relationships do not utilize domestic partner benefits, and therefore might not have alerted the company to their relationship. Domestic partner benefits have adverse tax consequences for the employee, leading many couples to elect not to participate in domestic partner programs if they can secure insurance coverage through other means. Finally, these programs are limited to the particular employer and carry no legal status elsewhere.

Locally, New York City also maintains a domestic partnership registry in which same-sex and different-sex couples can register themselves as "domestic partners" with the City. This is a different kind of program from the private employer programs discussed above. The city registry makes couples eligible for the same treatment accorded spouses under all city laws and policies, such as visitation in city hospitals and prisons. But again, many couples cannot or do not register. The registry is only available to New York City residents, making it out of reach for many who worked at the WTC. Also, the protections it accords are limited and applicable only within New York City. Therefore, using registration with the City as a litmus test for family status would be an inappropriate and severely under- inclusive mechanism.

* New York State has not recognized marriages of same-sex couples.
New York courts have not recognized a same-sex partner as a "spouse" for many purposes under state law. Challenges have been mounted seeking to provide same-sex partners the protections accorded married couples under the laws of intestacy, wrongful death, and the spousal elective share. So far, none has been successful. Under prior interpretations, therefore, the partner will not automatically inherit the estate if the victim died without a will. Similarly, in this situation the partner will be considered a legal stranger and thus can only be appointed administrator if the relatives recognized by law, adult children, parents, and siblings, usually agree to the appointment.

Likewise, state statutes governing eligibility for worker's compensation have special protections for spouses, which make them eligible for long-term financial support rather than a one-time payment. These provisions have been interpreted in the past to require a formalized, legal marriage.

New York courts have recognized a same-sex partner as "family" for purposes of some housing protections.
In Braschi v. Stahl Associates, 74 N.Y.2d 201, 211 (1989), the New York Court of Appeals interpreted the term "family" in the rent control law to include same-sex partners. It provided a workable standard for determining who is a genuine family member eligible for protection. The standards have been codified in the New York housing regulations at 9 N.Y.C.R.R. 2104.6(d)(3).
* The federal government does not recognize same-sex partners as spouses.
The so-called "Defense of Marriage Act," ("DOMA") signed into federal law in 1996, states that the federal government will only recognize a marriage between a man and a woman notwithstanding any contrary law of individual states. As a result, a same-sex surviving partner will not be recognized by the federal government as a spouse. This is the law no matter how long the two lived together or how many steps they took to formalize their relationship, such as executing wills, registering as domestic partners, or entering into a Civil Union in Vermont.

Without the protection of marriage, a surviving same-sex partner will likely be barred from eligibility for all federal programs designed to assist a surviving spouse at the time of death. These include social security survivor's benefits, federal death benefits, pensions for spouses of federal employees, public safety officers, and veterans, and any FEMA assistance that may be available for eligible surviving spouses.

The September 11 Victim's Compensation Fund
The September 11 Victim's Compensation Fund is a program established by the federal government to provide compensation to the families of victims. An award from the fund is intended to replace a damages remedy in a traditional tort lawsuit against the airlines, and those applying for compensation waive the right to bring such a suit.

Legislation establishing the Fund states that its purpose is to provide compensation to "relatives" of deceased victims. Whether "relatives" includes same-sex surviving partners is not clear at this time. Authority for promulgating regulations to implement distributions from the fund lies with the Department of Justice. The Department of Justice could interpret the law to consider same-sex partners to be relatives eligible for awards and compensation, notwithstanding the limitations imposed by DOMA, above. However, Attorney General Ashcroft has not indicated how he will interpret this law. The traditional principles of intestate succession and wrongful death in New York could leave same-sex partners without the ability to make a claim. Regulations are expected by late December [2001].

If you have a question or a client who is a surviving partner, please contact Staff Attorney Jennifer Middleton at Lambda at (212) 809-8585.


Syd Peterson, Paralegal
Lambda Legal Defense & Education Fund
1500 Wall Street, Suite 1500 / New York, NY 10005
212.809.8585 / Syd Peterson

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