Parents, lesbian spouse fight over deceased attorney’s estate

A dispute over a deceased lesbian’s estate centers on the recognition of same-sex marriage in Pennsylvania.

In 2006, Ellyn Farley married her partner, Jennifer Tobits, in Canada. In September 2010, Farley died of cancer. At issue is whether Farley’s pension benefits–about $41,000–should go to her spouse or her parents. It comes down to a form Farley signed on her deathbed, designating her parents as the beneficiaries. Traditionally, this form must be signed by a spouse to be valid. But Tobits didn’t sign it.

A lawyer from the Thomas More Society, which promotes heterosexual marriage, is representing Farley’s parents.

“Under Pennsylvania law and federal law, the Canadian same-sex marriage is not valid in the terms of this plan,” said Peter Breen.

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Breen invokes the Defense of Marriage Act, known as DOMA, which the Obama administration has decided not to enforce.

“Our primary interest is defending the definition of marriage as between one man and one woman,” said Breen. “With this case, what we hope we will achieve is to continue to buttress DOMA as good law, as well as a law that continues to apply.”

Attorney Melanie Rowen, who represents Tobits, disagrees.

Rowen of the National Center for Lesbian Rights said her client is on the right side of the law.

“If Jennifer is not recognized as a spouse here, that sends a terrible message to same-sex couples everywhere that their marriages simply aren’t equal,” said Rowen. “They may think that their marriage means a certain thing and then after one of them dies, it turns out that it doesn’t. That simply can’t be allowed to happen.”

The case has come before a Philadelphia federal judge. Both the Farleys and Tobits claim they are entitled to the money from Cozen.

Meanwhile, Robert Fiebach, Cozen’s lawyer, has filed a motion to remove the firm from the dispute.

“We had two competing claims,” says Fiebach. “In that situation, we do not want to be the ones to make the decision. The court should make the decision as to who is entitled to the money. So that is why we filed an interpleader to allow the court to decide between two competing claims.”

Rowen said there’s a lesson to be learned in this case.

“Same-sex couples need to think very carefully about their benefits and look at every benefit and every asset that they have and consider what will happen to it after they pass away,” she said.

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