This week, a Bucks County judge in the Court of Common Pleas ruled that a same-sex couple were married under common law and entitled to receive attendant benefits.
It was a gift grieving widow Sabrina Maurer was able to give her wife.
Maurer and Kimberly Underwood were friends at Mount Holyoke College during the 1980s, but they didn’t click romantically until a chance meeting in a Philadelphia hospital years later.
“I was working at the Hospital of the University of Pennsylvania as a pharmacy resident and I was up on the cardiac care floor … and I noticed Kim’s name in the computer,” Maurer recalled.
Underwood, who had a congenital heart defect, was someone else’s patient. Maurer left her a note and they caught up while Underwood was still in the hospital. After that, their relationship developed quickly, said Maurer. After living together and moving to New Jersey, the couple had a commitment ceremony in 2001 and considered themselves married.
Underwood died in 2013, exactly six months before gay marriage became legal in Pennsylvania in 2014. That’s when the headaches started for Maurer, who lives in Doylestown.
“After Kim died, suddenly I started experiencing all of the discrimination that had never happened when she was alive,” she said. “I was denied life insurance payment, I was denied survivor benefit, I had to pay inheritance tax on 50 percent of joint checking, joint savings [and] joint investment accounts.”
When Maurer was denied access to Underwood’s safe deposit box — which she needed to inventory to file state income tax returns — her sister posted some of her gripes about discrimination to Facebook. One of her friends from Mount Holyoke reached out and suggested she might have a case for common-law marriage.
Mary Hackett, a lawyer with the firm Reed Smith in Pittsburgh, represented Mauer pro bono.
Pennsylvania abolished common law marriage in 2005, but any marriage that predates that change still counts.
Judge C. Theodore Fritsch Jr.’s declaration states that Mauer and Underwood were married prior to that deadline, “[entering] into a valid and enforceable marriage, under Pennsylvania common law, on Sept. 2, 2001, and [remaining] married … until the time of Kimberly M. Underwood’s death on Nov. 20, 2013.”
That decision, said Mauer, is her last gift to her wife. “This weekend, I am literally going to take the paper that the declaration is on and go up the hill in our backyard — to Kim’s favorite spot — where some of her ashes are sprinkled, and I’m going to read her the decision.”
Whitewood, et al. v. Wolf, et al. made same sex marriage legal in Pennsylvania in 2014. With Obergefell v. Hodges, the Supreme Court of the United States forced all 50 states to recognize and issue same-sex marriage licenses.
As the the Bucks County case indicates, a number of legal issues remain to parse out related to same-sex partnership.
Philadelphia-based family lawyer Helen Casale, who was involved in the Whitewood case, said this decision could have a ripple effect.
If same-sex couples who have been married for many years can establish themselves as common-law spouses, “then that’s a big difference with respects to benefits, with respect to tax consequences,” she said.
Duration of marriage is important in divorce, too, where it can factor into decisions such as alimony and the way a court looks at dividing property, according to Casale.
Another unresolved issue, she said, is how to deal with the historical practice of one member of a gay couple legally adopting the other member as a way to avoid paying an inheritance tax. This workaround far predates legal same-sex marriage, and couples are now seeking dissolve their adoptions so that they may finally marry.
Self-described “Philly gay lawyer” Angela Giampolo disagreed with Frisch’s interpretation of law.
“The ruling may be on the right side of history,” she said, “but it’s on the wrong side of the law.”
Her reason? When common-law marriage was recognized in Pennsylvania, it clearly only applied to a man and woman.