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Culhane: Death and Documents

A story about a law firm based here in Philadelphia has inspired me to come down from the theoretical and rhetorical levels of debate about marriage equality. The complicated mess is a reminder about the practical, problem-solving capacity of relationship recognition. I hope it also serves as a reminder to readers to take every single legal step they can to protect themselves, their partners, and their assets.

The linked story contains the reporter’s best understanding of what’s happened to date, so I won’t go over it in much detail. At its core, though, the depressing tale involves a battle over the proceeds of a deceased lawyer’s profit-sharing plan. The combatants are the woman’s parents, on the one side, and her spouse/life partner, on the other.

It seems clear that the deceased woman, Sarah Ellyn Farley, did not name her spouse, Jennifer J. Tobits, as a beneficiary on the form.  It’s less clear whether Farley validly named her parents as beneficiaries. The firm, Cozen O’Connor, has wisely asked a judge to rule on the issue. (Although Cozen is Philly-based, Farley worked in the Chicago office. It’s unclear whether Illinois law or Pennsylvania law would apply, but it probably doesn’t matter; read on.

Farley and Tobits were married in Canada, but of course their marriages carry no legal weight in Pennsylvania; or even in Illinois, where the civil union law that might have helped Tobits didn’t go into effect until after the events that created this controversy.

Whatever the legal status of same-sex couples, though, it should have been possible for the firm to have defined the two women as spouses for purposes of this profit-sharing plan. The firm can define “spouse” as broadly as it wishes. Tobits alleges that the couple believed that they were, in fact, married for purposes of the plan, and that Farley presented the couple’s Canadian marriage certificate to the firm in connection with a notice of her intent to claim under it. But that may not have been enough: According to the story, Tobits now concedes that “provisions in the…plan ‘might create uncertainty’ about whether [she] would be recognized as the surviving spouse.” She argues that the firm should have told Farley so.

Without more information, I can’t predict how this will turn out. But it’s safe to say that if Tobits’s main argument is based on a breach of duty to inform Farley rather than on the provisions of the plan itself, she’s going to have a tough go of it.  Once the couple “disappears” from the plan, then the parents would, generally speaking, have priority over a “legal stranger” – like Tobits.

The sad part is that, from a legal perspective, these priorities make sense. We generally value people’s decisions about what to do with their assets. When we don’t have that information, then status – as a spouse, as a parent, as a child, and so on – fills in the blanks, making an assumption about what someone would have done had they done anything at all. Under the law of intestacy, for example, the deceased’s estate is distributed among named family members according to a formula that reflects a general average – how most people would have wanted their money to be doled out, if they’d taken the time to make a will.

That’s one of the many reasons marriage is so important. Without it, the Jennifer Tobitses of the world are, potentially, no one – especially if they haven’t protected themselves.

I know, I know…if Farley – who after all was a lawyer – wanted to be sure that her intent would be honored, she should have designated Tobits as a beneficiary. Then we wouldn’t be in Legal Presumption Land, “from whose bourn no traveler returns”. (Can you identify that quote without plugging it in to Google? Hint: it’s from one of the most famous speeches in all of literature.)

But the fact that this common sense step wasn’t taken here  – where the document was staring these two women in the face – should tell us that it often doesn’t happen, for whatever reason. How many reading this column have the full set of documents needed to make sure your relationship will be recognized in every context: will, living will, power of attorney, retirement plan beneficiary designation, and so on? Not many, I’ll bet, even though we should.

Please, take care of this stuff. It’s not as expensive or time-consuming as you might think.

A coda: Without more facts, I don’t feel comfortable taking a potshot at these parents. More generally, though, I hope there’s a special, especially tight circle of Hell reserved for parents who try to satisfy their own greed while adding to the misery of those left behind. After all, these people are their children’s spouses – whatever the law says.

John Culhane directs the Health Law Institute at Widener University School of Law, and writes about LGBT rights, public health law, and torts and compensation.

  1. Neptune
    August 5th, 2011 at 09:38 | #1


    Great column. Thanks for posting this. I have to second everything you have said. I’m an attorney in your area, and while I don’t generally practice, many of my co-workers ask me about this stuff. I try to explain the importance of it to them, and this column does a great job of that, gay or straight.

    I also heartily agree regarding that circle of hell, and I hope there is another one reserved for parents who would deny their child’s life partner simply because of their gender.

  2. johnculhane
    August 5th, 2011 at 09:55 | #2

    Neptune: Thanks for pointing out that the same thing applies to straight, unmarried couples. Very important and something I should have highlighted.

  3. August 6th, 2011 at 13:02 | #3

    If only more people understood the importance of marriage equality… cases like these really bring that to light.

    P.S. HAMLET (I was a stage manager this summer for a production- can’t tell you how many times I’ve heard that line)

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