Same-Sex Domestic Partner May Pursue Wrongful Death Claim as a Spouse
April, 2003
NEW YORK SUPREME VENTURES
INTO QUESTIONS OF FIRST IMPRESSION – NEGLIGENT IN-VITRO FERTILIZATION AND NEW WRONGFUL DEATH PLAINTIFFS
As a matter of first impression, the Supreme Court of New York County, per Justice John Dunne, has held that a same-sex domestic partner may pursue a wrongful death claim as a spouse under New York’s wrongful death statute. In Langan v. St. Vincent’s Hospital of New York, 2003 N.Y. Slip Op. 23593, 2003 WL 21294889, the court concluded that plaintiff and decedent’s Vermont civil union rendered plaintiff a “spouse” as that term is used in the wrongful death statute.
Facts
Plaintiff and decedent met in 1986 when plaintiff was 25 and decedent was 26. They began living together eight months later and lived together until decedent’s death at age 41. They provided each other with health care proxies, each was the sole beneficiary on the other’s life insurance policy, they were joint owners on homeowners’ insurance, and were the sole legatees under each other’s wills. They also participated together in “all aspects of family life” with their respective families, including birthdays, anniversaries, holidays, religious events, dinners, and vacations.
Effective July 1, 2000, a Vermont statute became effective which legally sanctioned homosexual unions in the same manner as marriage. The civil union required the same solemnization as a marriage and created a spouse for all purposes under Vermont state law. Within four months after the statute became effective, plaintiff and decedent traveled to Vermont and were joined in a union solemnized by a justice of the peace; approximately 40 family members and friends attended the ceremony. Plaintiff and decedent exchanged vows, including taking each other “to be my spouse,” exchanged wedding bands, and later purchased a house.
Decedent died after being struck by an automobile driven by Ronald Popadich who ran down and injured 18 people in Manhattan. He was taken to the defendant hospital with a broken leg and underwent two surgeries. He died while in the hospital from an embolus of “unknown origin.”
Plaintiff’s Lawsuit
Plaintiff sued defendant for wrongful death and medical malpractice, claiming to be a spouse under New York’s wrongful death statute. Plaintiff and defendant then cross-moved for partial summary judgment on the legal question of whether plaintiff was entitled to bring the action as a “spouse.”
Legal Analysis
The Supreme Court framed the question before it very narrowly – “the limited issue presented on the motion and cross-motion is whether, under principles of full faith and credit and comity, plaintiff[’s] legal status as a spouse of [decedent] in a civil union solemnized in the State of Vermont, which union is sanctioned and affords all benefits and obligations of marriage under the laws of Vermont, entitles him to recognition as a ‘spouse’ under New York’s wrongful death statute.”
To answer this question, the court first looked to the general rule under New York law that a marriage which is valid where made is valid in New York unless “contrary to natural laws or statutes.” The court noted that, in New York, refusal of recognition of a marriage made outside the state is generally reserved for incestuous or polygamous marriages. “It follows,” the court wrote “that if plaintiff has a validly contracted marriage in the State of Vermont, and if the Vermont civil union does not offend public policy as would an incestuous or polygamous union, it will be recognized in New York for purposes of the wrongful death statute.”
The court examined the Vermont civil union law and determined that plaintiff and decedent had a validly contracted civil union in that state. Under the Vermont statute (15 V.S.A. §1201, et seq.), the parties to the union must not be a party to another civil union or marriage, must secure a license, and must be joined by a judge, a justice of the peace, or a member of the clergy. The statute provides further that once these requirements are met, a party to a civil union is considered a “spouse” for all purposes under Vermont law, including wrongful death actions. The court found that plaintiff and decedent complied with the requirements of the Vermont statute and so had contracted a valid civil union under Vermont law.
The court then examined New York public policy to determine if it would be violated by recognition of a Vermont civil union between same-sex partners. The court concluded that “New York’s public policy does not preclude recognition of a same-sex union entered into in a sister state,” looking to, inter alia, the following facts:
(1) Unlike 35 other states, New York has not enacted a state version of the federal Defense of Marriage Act (1 U.S.C. §7; 28 U.S.C. §1783©), which, in response to the Vermont statute, declares that a marriage is a union only between a man and a woman and says that states are not required to recognize same-sex unions.
(2) Both the State of New York and New York City recognize same-sex domestic partnerships for employment benefits.
(3) New York courts have interpreted adoption laws to allow what has been termed “second parent adoption,” i.e. to allow the biological parent’s live-in homosexual life partner to adopt the child, rejecting a literal reading of the statute that would have forced the biological parent to relinquish parental rights; and
(4) A same-sex domestic partner is entitled to recover for the loss of his or her partner in the September 11 tragedy.
After concluding that plaintiff and decedent complied with the Vermont civil union law and that recognition of their union does not violate New York public policy, the court turned to the New York wrongful death statute and its language which provides that only certain classes of people are “distributees” under the statute, i.e. people who may recover for wrongful death. (EPTL §1-2.5) Distributees are compensated not for injuries sustained by the decedent, but for their pecuniary injuries suffered as a result of the decedent’s death. (EPTL §5-4.3) They are identified for purposes of both intestacy and wrongful death as including “a spouse, issue, parents, grandparents or their issue.” (EPTL §4-1.1[a]).
The court recognized that there is no statutory definition of “spouse” in the wrongful death act, and so looked to a definition under a section which addresses and delineates when a surviving spouse is disqualified from recovery. (EPTL §5-1.2) The court noted that the categories of disqualified surviving spouses include those who are separated at the time of death, had abandoned the decedent at the time of death, or were undergoing a divorce. From this language, the court concluded that the determinative inquiry for defining a “spouse” is “whether the marriage is intact and functioning” at the time of the decedent’s death, and not “whether a spouse is a man or woman.” In this case, the court concluded, the civil union between plaintiff and decedent was “intact and functioning” at the time of decedent's death. Plaintiff was accordingly a “spouse” under the New York wrongful death statute.
Finally, the court acknowledged that, at the time the wrongful death statute was written, the term “spouse” did not envision the inclusion of a same-sex marital partner. “But as the concepts of marriage evolve over time,” the court wrote, “leaving behind the common law doctrine that ‘a woman was the property of her husband’ and her ‘legal existence’ was ‘incorporated and consolidated into that of the husband,’ so too public opinion regarding same-sex unions is evolving. At the time the statute was written, there were no sanctioned same-sex couples, much less domestic partnerships, civil unions, reciprocal beneficiaries, and, as in the Netherlands, full fledged same-sex marriage. Indeed homosexuality had not yet been removed from the professional medical and psychological definitions of disease and consenting adult homosexual intimacy was considered criminal. Nor had Ford, General Motors, Chrysler and Coca Cola provided benefits to the same-sex partners of its employees. . . .The words of the [wrongful death] statute, referring to a spouse as a husband or wife, operate to clarify that the intended primary beneficiaries are the members of the legally sanctioned family unit which is still intact.” •
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