A new era of litigation: The complications of defining spouse
One obituary described Ellyn Farley as a happy, studious, pet-loving attorney married to her spouse Jennifer Tobits and only “reluctantly” wearing dresses to attend Mass. The other described her as a fierce litigator and champion to the underdog, survived by her parents, her brother, various aunts and uncles, a godmother, and “good friends for life who will be in her heart forever, Jennifer and Nancy, of Chicago; and numerous cousins and other devoted friends.”
The first was published in the Chicago Tribune, the city where Farley lived with her spouse Jennifer Tobits. The latter was published in the Roanoke Times, in Virginia, where Farley grew up.
The first was drafted by one of the lesbian couple’s friends and was reviewed and edited by Tobits. The latter was coordinated by Farley’s parents who, according to Tobits, did not consult her about its contents.
The first makes clear that Farley was married to a woman; the latter scrubs that reality out of her life story.
Now, Farley’s surviving spouse, Jennifer Tobits, and her parents, Joan and David Farley, are squaring off in two different courts over their different portrayals of Farley. In probate court in Illinois, they are fighting over Farley’s will. In a federal court in Pennsylvania, where Farley’s law firm is headquartered, they are trying to influence a judge’s determination of who should properly receive the benefits of Farley’s profit-sharing plan.
“This is the new era,” said Shannon Minter, legal director of the San Francisco-based National Center for Lesbian Rights. “We are all familiar with hearing stories about parents stepping in and not honoring their children’s relationships and trying to take all the assets. Now that so many couples are in marriages or civil unions or domestic partnerships, it’s still happening; but we have a degree … of legal protections that we didn’t have before.”
But in this new era of litigation, Minter said, “there is a lot of confusion” caused by the federal Defense of Marriage Act (DOMA).
DOMA is the federal law that prohibits the federal government from recognizing marriages between same-sex couples. It has two sections. One states, “No State … shall be required to give effect to any public act, record, or judicial proceeding of any other State … respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.” The second section reads, “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.’”
Farley’s parents, represented by the right-wing Thomas More Society, a pro-life law firm, say DOMA precludes the courts from awarding any of Farley’s death benefits to Tobits.
Minter of NCLR, which is representing Tobits, says DOMA does not apply to private employers, such as Farley’s law firm.
“[P]rivate employers cannot use that as an excuse for not honoring our marriages,” said Minter.
Nevertheless, Farley’s law firm, Cozen O’Connor, has asked a federal court to settle the dispute for them.
Jennifer Tobits and Ellyn Farley were married in Toronto on February 17, 2006, and made their home in Chicago. Just a few weeks after their marriage, Farley was diagnosed with an aggressive form of cancer, which she battled for four years. She died on September 13, 2010.
Shortly after Farley’s death, her parents, Joan and David Farley of Roanoke, Virginia, petitioned an Illinois probate court for the right to take over administration of their daughter’s estate. They also sought the assets of a profit-sharing plan Farley had, as partner of the Cozen O’Connor law firm.
The firm filed a motion on January 24, 2011, asking the U.S. District Court for the Eastern District of Pennsylvania to determine who gets the benefits payment.
“In the last week of her life,” said Minter, “Ellyn wrote a will because she feared her parents would try to take everything from Jennifer.”
“Ellyn appointed her close friend Nancy [Tuohy] to be the executor of the estate,” he explained. “Initially, Nancy accepted that position and acted as the executor but declined the responsibility later after she realized that she would need to hire an attorney in order to resolve the Farleys’ various claims to Ellyn’s estate.”
“The Farleys knew that Jennifer and Ellyn married,” explained Minter. “But they take the position that the marriage is not valid and are arguing that it should not be legally recognized because of DOMA.”
The underlying issue in this case is whether Illinois will recognize the marriage, said Minter.
A civil unions law took effect in Illinois on June 1, 2011, and, according to James L. Bennett, Midwest regional director of Lambda Legal, “Illinois recognizes marriages performed in other states or countries, even Canada, as civil unions in Illinois.”
Under that law, said Minter, Tobits would be preferred over Farley’s parents to be administrator of Farley’s estate.
The law firm states, in its document to the federal court, that the firm “had not received a valid designation of Beneficiary form from Ms. Farley prior to her death.” Following Farley’s death, said the firm, Farley’s parents presented them with a Beneficiary form “purporting to show that Ms. Farley had designated them as her Beneficiaries…and had represented her present marital status as ‘single.’” The form was dated September 12, 2010, the day before Farley died.
But Cozen also notes that, “inconsistent with the declaration” that Farley was “single,” the Beneficiary form submitted by the Farleys “also purports” to have the notarized signature of “Ms. Farley’s spouse.” The firm says the form “is not signed by [Farley’s] spouse.”
“Accordingly, Cozen O’Connor cannot determine the validity of this designation of Beneficiary form,” states the firm’s document to the court.
Tobits, in documents she filed with the federal court, denies ever signing the Beneficiary form, but she also acknowledges obtaining a “blank designation of Beneficiary form” for Farley’s father the day before Farley died. Tobits said she did this because the father had instructed hospital staff that the parents—and not Tobits—would make medical decisions for Farley and because she “feared” the father “would refuse her access to Ms. Farley’s hospital room unless she complied.”
“Wanting to see her dying wife and to avoid a dispute in the hospital with her wife’s parents,” said the documents filed by NCLR, “Ms. Tobits went home to retrieve the form.” Tobits said she was not present when Farley purportedly signed the form and that the form “was signed” about 30 minutes after Farley had begun vomiting blood. Farley “fell asleep that night” and died the following morning.
Tobits claims that Farley “suffered from weakened intellect,” that Farley’s parents exercised “undue influence” over Farley, and that Farley did not sign the form of her own free will.
“Ellyn did not have to fill out a form for her spouse to get the benefits,” Minter said. “Under the plan, the benefits go to an employee’s spouse unless the employee designates someone else and the spouse gives written consent, which must be notarized,” he explained.
“The Farleys filled out the form and pressured Ellyn to sign, but Jennifer did not” give her written consent, said Minter.
Cozen O’Connor court documents confirm, “Ms. Tobits’ signature does not appear on the designation of Beneficiary form in the space reserved for spouse consent to beneficiary designation.”
Evan Wolfson, founder and president of the national Freedom to Marry organization, said the dispute “Highlights how unfair marriage discrimination is, adding to tensions and bad actions even within families.” And DOMA, he says, “gives those who would tear families apart an extra weapon to use even if the weapon itself is not appropriate.”
The Farley parents’ attorneys say DOMA is implicated because the benefits they seek to acquire from Farley’s law firm are part of an ERISA plan.
ERISA—the Employee Retirement Income Security Act—is a federal law that sets minimum standards for pension plans in private industry.
NCLR’s Minter acknowledges that ERISA “governs many aspects of how benefits must be structured.”
“But the Plan here,” he said, “defines spouse for itself, which is perfectly acceptable under ERISA.”
And DOMA “does not apply,” said Minter, “because [the law firm’s beneficiary plan] is private.”
“Jennifer meets [the law firm’s plan] definition,” said Minter. “ERISA does not dictate how private employers define spouse of prevent them from treating married LGBT employees equally. Likewise, because there is no need to look beyond the Plan’s clear definition of ‘spouse,’ it is irrelevant whether Pennsylvania law would define it differently in some other setting.”