BY ARTHUR S. LEONARD | In two recent cases involving the rights of the surviving partners of deceased gay men, courts have confronted the question of whether marriage rights for same-sex couples, recognized last June by the US Supreme Court, should be read back into the past.
In a case out of Alabama, the surviving partner received the spousal benefit he sought — the proceeds from a wrongful death lawsuit — though the court did not rule directly on the retroactivity claim. In the other, the survivor was unsuccessful because his partner died seven months after same-sex marriage became available in their state, New Jersey, but just days before they were scheduled to marry.
First, the hard-luck timing story from New Jersey: Rucksapol Jiwungkul and Maurice R. Connolly, Jr., began a relationship in 1983 that continued until Connolly’s death on June 2, 2014. Although the couple registered as domestic partners on July 10, 2004, the date that right went into effective in New Jersey, they decided against entering into a civil union three years later when the state created what was purported to be a status conferring all the rights and benefits of marriage.
New Jersey, Alabama cases lead to different outcomes, but critical question remains unresolved
Jiwungkul and Connolly were very public about their decision not to do so. Shortly after the Legislature — under order from the State Supreme Court to grant same-sex couples either civil marriage or civil union rights — opted for civil unions, Connolly was quoted in the Philadelphia Inquirer describing himself as “furious.” A civil union, he said, “was not equivalent to marriage.”
When the Defense of Marriage Act was struck down by the US Supreme Court in June 2013 and the federal government began recognizing legal same-sex marriages, the issue of whether civil unions were in fact equivalent to marriage once again came alive in New Jersey. After the State Supreme Court in October of that year refused to stay a trial court’s marriage equality ruling, Governor Chris Christie threw in the towel and same-sex marriages began.
Jiwungkul and Connolly began planning for a June wedding, and applied for a marriage license on May 27, 2014, stating their ceremony would take place on June 8. Tragically, Connolly died suddenly and unexpectedly on June 2, leaving Jiwungkul as his surviving domestic partner and executor and principal beneficiary of his estate.
Connolly’s bequests to Jiwungkul were not subject to the New Jersey transfer inheritance tax under the terms of the old Domestic Partnership Law. But Connolly’s estate was required to pay New Jersey estate tax of $101,041.00. Jiwungkul filed the appropriate estate tax return but then filed an amended return claiming the spousal deduction and requesting a refund of the entire amount.
The New Jersey Department of Taxation rejected his refund claim, pointing out that the Domestic Partnership Law did not provide domestic partners with the marital deduction for estate tax purposes. Had the men registered for a state civil union, the marital deduction would have been available, as it would have been had they married promptly in October 2013.
Jiwungkul filed suit in the New Jersey Tax Court, claiming that as a result of developing judicial decisions, he should be treated as a surviving spouse. That court’s presiding judge, Patrick DeAlmeida, denied his claim.
DeAlmeida pointed out that the men could have entered into a civil union as of February 2007, but made a conscious choice not to do so, and could also have married as early as October 2013.
“There is longstanding policy in this State,” he wrote, “of not according statutory rights to couples who have not fulfilled the statutory requirements for a government-sanctioned relationship.”
DeAlmeida rejected the argument that because the right to marry has the status of a constitutional right, the Domestic Partnership Law of 2004 should be retroactively interpreted to provide the spousal deduction for estates of same-sex partners registered under it. The couple delayed marrying, and, the judge wrote, “They must, however, accept the legal consequences, including the ramifications of the tax laws, of their decisions… Plaintiff and decedent suffered from a tragic turn of events, the tax consequences of which could have been avoided.”
Jiwungkul, as executor of Connolly’s estate, is represented by Robyne D. LaGrotta of Parsippany, who could appeal the Tax Court ruling to the State Superior Court’s Appellate Division.
The Alabama case turned out more favorably for the surviving partner. Paul Hard and David Fancher, Alabama residents, married in Massachusetts in 2011, at a time that their home state did not recognize their marriage. Shortly after they returned home, Fancher died when the car he was driving collided with a United Parcel Service tractor trailer. The Alabama death certificate stated he was “never married,” and Hard was not listed as his surviving spouse. The court appointed an administrator for Fancher’s estate, who filed a wrongful death lawsuit against United Parcel.
Under Alabama law, estates have to distribute the proceeds from wrongful death actions to a decedent’s legal heirs. If a person is survived by a spouse but no children, but there is at least one surviving parent, the surviving spouse receives the first $100,000 plus one half of the balance, the other half going to surviving parents. If there is no surviving spouse but there are surviving parents, the proceeds go to them. Fancher was survived by his mother, Pat Fancher.
While the wrongful death case was pending, Hard filed a lawsuit against Alabama officials and the administrator of Fancher’s estate seeking a declaration that Alabama’s refusal to recognize his marriage to Fancher violated the constitution, an injunction requiring the state to issue a new death certificate taking account of the marriage, and an injunction ordering the estate to distribute to him the spousal share of any proceeds from the wrongful death suit.
Pat Fancher filed a motion to intervene in the case, arguing she was entitled to the full proceeds of any wrongful death action because Alabama did not recognize the marriage so there was no “surviving spouse” as far as the state was concerned. Chief US District Judge William Keith Watkins granted her motion, while the estate’s administrator agreed to set aside the spousal share of any amount that would be recovered if the lawsuit were resolved.
A settlement was reached with United Parcel several months later, and the estate administrator paid Pat Fancher the portion of the proceeds that she would be entitled to receive even if the marriage were recognized, putting the rest, about half a million dollars, in a trust account pending resolution of Hard’s case.
In January 2015, when US District Judge Callie Granade ruled that Alabama’s same-sex ban was unconstitutional and refused to stay her decision, the Alabama State Registrar of Vital Statistics issued a new death certificate recognizing the Hard-Fancher marriage. Watkins, the judge hearing Hard’s suit, then directed the estate’s administrator to pay over the balance of the trust money to the court’s registry and stayed the case, pending the Supreme Court’s expected decision on the marriage equality issue nationwide.
When the Supreme Court ruled, Hard moved to lift the stay and disburse the remaining money to him, while the state attorney general moved for dismissal since Hard now had the substitute death certificate he sought. The court granted Hard’s motion to release the funds to him and dismissed the case last July 15.
Pat Fancher quickly filed a motion to set aside the dismissal order and block payment to Hard, arguing that unless the Supreme Court’s ruling applied retroactively, the amended death certificate was invalid. The district court denied the motion and ordered the clerk court to distribute the money.
Pat Fancher appealed.
The 11th Circuit Court of Appeals pointedly refrained from deciding whether last June’s marriage equality ruling applies retroactively. Instead, it focused on Fancher’s failure to argue that the case was not moot, the only valid ground to challenge the trial court’s decision to dismiss it. Since Hard had obtained the relief he sought, there was no “live controversy” before the district court.
In response to Fancher’s challenge to the district court’s order that the remaining money be paid out to Hard, the appeals court found, “Once the State of Alabama recognized Hard as the surviving spouse and the district court dismissed the case as moot, the court committed no abuse of discretion by disbursing the funds accordingly.”
Hard is represented by Montgomery attorneys David Dinielli, Scott Daniel McCoy, and Samuel Eugene Wolfe. Pat Fancher is represented by Matthew Thomas Kidd, also of Montgomery. The 11th Circuit opinion was issued unsigned by a panel consisting of Judges Adalberto Jordan, Julie Carnes, and Jill Pryor.