12/06/2011 03:54 pm ET Updated Feb 05, 2012

Woman May Lose Same-Sex Spouse's Death Benefits to Homophobic In-Laws

I recently wrote a story for detailing a Chicago-area woman's bitter dispute with her deceased partner's parents over the rightful beneficiary of the deceased's death benefits. Click here to read the full story.

Although the facts of the case are somewhat complex, the lawsuit basically concerns the late Sarah Ellyn Farley and her $41,000 profit-sharing plan. Ellyn's parents, who have retained the conservative Thomas More Society as counsel, deny to recognize Ellyn's partner, Jennifer Tobits, as her spouse, despite the fact that Jennifer and Ellyn were married in Canada more than a four years prior to Ellyn's death, which resulted from a rare form of cancer. Jennifer asserts that she is the spouse and thus is the legal beneficiary of the plan. She has retained the National Center for Lesbian Rights (NCLR) as counsel. Ellyn's employer, law firm Cozen O'Connor, has requested the Pennsylvania court remove it from the case so that the matter can be decided between the parents and Jennifer.

According to court documents filed by the plaintiff, Ellyn's parents were distant from their daughter. When Jennifer alerted them that Ellyn was close to death, they traveled to the hospital and demanded to see their daughter's will and profit-sharing beneficiary designation form. Fearing that they'd prevent her from seeing Ellyn in the hospital, Jennifer complied with the request for the designation form. The parents then entered Ellyn's room and shortly thereafter emerged with a signed document designating them as the plan's recipients.

Of course, the parents claim that Jennifer is not the legal spouse of Ellyn and therefore has no entitlement to the benefits. But private employer benefits plans aren't necessarily restricted by federal and state laws. According to legal experts, a private employer can define the term spouse in its benefits plan to include same-sex couples. However, Cozen O'Connor's plan had no such language. The parents claim that because the law firm did not specify, spouse only applies to opposite-sex couples.

Unfortunately, they might be right. The Defense of Marriage Act (DOMA), which for the purposes of federal law defines marriage to be between a man and a woman, appears to factor into Employee Retirement Income Securities Act (ERISA), a law that regulates employer benefits plans, as well as the tax code, which also has an impact on such plans. This means that for the purposes of a benefits plan subject to ERISA, unless otherwise noted by the employer, a spouse must be of the opposite sex. A possible exception is if the employer's state recognizes same-sex marriages or civil unions. However, Pennsylvania, where Cozen O'Connor is based, does not.

This case highlights the unforeseen inequities that a baseless law like DOMA creates. What distinguished Ellyn and Jennifer from Ellyn's parents? Was their love, commitment and marriage any less because both happened to have two X chromosomes? And let's not even start with that "inability to procreate together" nonsense, which we all know can be shot down by pointing to infertile couples.

DOMA must come to an end. And I believe it will sooner rather than later. Public opinion has shifted, and there are a number of cases making their way to the Supreme Court that will challenge DOMA using a variety of tactics, including one that alleges the federal law is a threat to national security. Until then, if you are in a committed same-sex relationship, make sure to designate your partner as the beneficiary of your employer-sponsored benefits plan. Even if your company defines spouse to include same-sex couples, do it anyway. You never know who will be compelled by hatred, fear and greed to interfere with your last wishes.