Gay Marriage–Unanswered Legal Questions

The recent legalization of gay marriage in California and Massachusetts raises unanswered legal questions.

This article will discuss the impact of same-sex marriage in the areas of torts and estates.

I.  New York Law

Marriage between two people of the same sex is not authorized under New York law.  In other words, if a such couple were to be married in New York by a pastor, such marriage would be a nullity.

However, New York law recognizes marriages which other states honor as legal.  For example, although New York does not authorize a “common law marriage”, New York law will recognize such a marriage if it occurred in another state.  For example, Pennsylvania recognizes common law marriage.  If a couple were Pennsylvania residents and were deemed to have a common law marriage, then the couple would be considered married.  If the couple later moved to New York they would be considered married under New York law.  The couple would have to go through the same divorce proceedings in a New York court as a couple who were married in New York by a minister or judge.  This is because New York will recognize a marriage which is legal in another state.

II.  Administrative Changes in New York

       Governor David Patterson

In May Governor Patterson issued an Executive Directive that New York will recognize gay unions which have been legal in another state.  Therefore, a same-sex marriage which is legal in either California or Massachusetts will be recognized as a legal marriage in New York.

Although the Governor’s executive order garnered some headlines, there was nothing earth shattering about it.  The order was in full conformity with New York law which recognizes a valid out of state marriage, such as a common law marriage in Pennsylvania.

Here are some examples of but a few of the rule changes that New York agencies have made in conformity with the executive order:

  1. The Department of Civil Service will construe laws relating to the payment of survivor’s benefits to include surviving same-sex spouses.
  2. The Department of Taxation and Finance will construe sales tax exemptions, such as for the transfer of cars between spouses, to include same-sex spouses, and it will also include same-sex spousal income for purposes of determining eligibility for benefits, such as the STAR property tax reduction program.
  3. The Department of Health will count same-sex spousal assets jointly for purposes of Medicaid eligibility.

III.  The State of Same-Sex Marriage in the Legislature

The Democratic dominated Assembly approved a same-sex marriage law in 2007 by a vote of 85-61.  However, in the Senate it failed to get out of committee in 2007 and 2008.  The Senate has a thin Republican majority.  

A good amount of the opposition has come from religious groups.

The Republican majority in the Senate is razor thin at about 2 votes.  In the event of that the Democrats take the State Senate, then it is likely that the Senate will approve the law.

The Court of Appeals, New York’s highest court, ruled that public policy limits marriage to a man and a woman.  It stated in 2006, that it is up to the Legislature to legalize same-sex marriages.  See Hernandez v. Robles7 NY3d 338. 

IV.  Out of State Marriage–California or Massachusetts?

Deval Patrick

Due to distance, Massachusetts may be the more likely choice for many New Yorkers who choose out of state marriage.  A trip to Massachusetts is an easy day trip by air shuttle.  Massachusetts Governor Deval Patrick is pictured at left.

However, before embarking on a trip to either state, one should determine the residency requirements of that state for marriage.  In other words, a one day trip on the air shuttle to Boston for a marriage at City Hall might not satisfy the Massachusetts residency requirements in order to have a marriage which could survive an attack in a subsequent divorce or estate litigation.  Therefore, if residency were not established within the requirements of that state, then there might not have been a valid marriage even a marriage license were issued and a marriage ceremony were performed.

For example, assume that a gay couple, both New Yorks,  went to a neighboring state to get married.  That neighboring state has legal same-sex marriage.  The couple go the state on Wednesday, and procure the license that day.  On Thursday they go to a justice of the peace in that state to get married, and they return later that night to New York.  The state in which they were married requires that a couple reside in the state for 30 days before getting married in that state.  Let us assume further in this example that in 10 years one of the spouses sues for a divorce in New York and seeks support from the other spouse who has significant assets and income.  The defendant spouse may defend the divorce case claiming that the parties were never legally married in that they did not fulfill the other state’s residency requirements.  Therefore, the wealthier spouse will claim that there was no marriage and that he owes no support obligations to the other spouse.

We make no comment of the residency requirements of California and Massauchessets or any other state.  These issues should be resolved prior to entering marriage in those states.

 V.  Same-Sex Marriages and Personal Injury Cases

Same-sex marriages changes New York personal injury law in three areas, loss of consortium and services, wrongful death, and the “zone of danger” in negligent infliction of emotional distress.

    A.  Loss of Services for Spouses

It is well established law that the non-injured spouse can have a claim for loss or consortium or loss of services. 

Loss of services is the damage that the non-injured spouse sustained, such as loss of society and companionship, changes in their social life, changes in the management of the household and the children, and interruption and changes in sexual relations.  For example, if the non-injured spouse must take-up all of the household duties, such as cooking and cleaning, then the jury can consider this as damage.  If the non-injured spouse had to take-up all child-rearing responsibilities (such as taking the children to school, picking them up, and taking them to after-school activities), the jury can consider this and can assign a monetary loss.

In the classic case, the husband is a construction worker and has an accident on the worksite.  The husband would have claims for his injuries.  However, even though the wife was safe at home when the accident happened, the wife would have a claim or cause of action for loss of services if the injuries affected their relationship.  For example, if sexual contact ceased, this would be damages to the non-injured spouse.  The non-injured spouse could also claim damage if she had to assume all of the heavy housework duties that her husband used to undertake.  The plaintiffs would be John Doe and Jane Doe.

The loss of services claim can only be interposed by a spouse.  It cannot be claimed by a “partner” or “significant other” or “companion.”  Similarly, the loss of services claim cannot be made by a domestic partner who is registered with the City Clerk as part of a Domestic Partnership.

Therefore, if there were a valid out of state marriage, the non-injured, same-sex spouse could be a co-plaintiff on a loss of services claim.  The co-plaintiffs would be John Doe and Chris James.

    B.  Wrongful Death

Under New York law a “significant other” or a “domestic partner” or a “mistress” or a “companion” would have no inheritance rights.  However, if there were a valid same-sex marriage out of state, then the same-sex spouses would have full inheritance rights.

In a wronful death case, a surviving spouse (whether same-sex or not) would have certain rights of survival and lost support due to the death of the spouse.  Therefore, a surviving spouse from a legal same-sex marriage would have certain survival rights and standing to prosecute a wrongful death case for the deceased spouse.

For example, a “domestic partner” who is not injured may not bring a wrongful death and personal injury case on behalf of his deceased partner who died in an auto accident.  The surviving partner would not receive any of the proceeds of the case unless he were named in a will.  In comparison, a surviving spouse from a legal same-sex marriage could bring the lawsuit as well as share in the estate.  Often, where there are no children, the surviving spouse may take the entire estate.

    C.  “Zone of Danger” and Emotional Distress

In the situation where a loved one is injured, the courts have limited recovery to relatives who witness the injury and who are not injured.  The relative must be in the “zone of danger.”  Additionally, the relative must have sustained a psychological injury.

For example, assume that the mother is on the second floor of her house watching her child play outside.  The child goes into the street, and the mother witnesses her child being struck and killed by a speeding automobile.  Even though the mother suffered great psychological injury in witnessing the death of her child, the mother would have no claim for the negligent infliction of emotional distress against the motorist.  The mother was outside the “zone of danger.”  However, let us assume that the mother is pushing a baby stroller across a street.  A speeding and reckless driver goes through the light and kills the infant who is being pushed by the mother.  In this case the mother would have been within “zone of danger”, and she would have a case against the motorist for the negligent infliction of emotional distress.  The mother would have this claim even though she suffered no physical injury.

If we were to assume that a same-sex couple had a child (either naturally or through adoption), then it could be argued that either one of the parents would have a negligent infliction of emotional injury claim. 

VI.  Same-Sex Marriage and Estates

Same-sex spouses would have rights of inheritance against each other’s estate.

Again, great care should be exercised in preserving each spouse’s estate rights.  It is possible that a deceased spouse’s family could contest whether there was a valid marriage in another state.  If we were to go back to the prior example of a couple taking a short trip to the neighboring state to get married but failing to establish valid residency, the out of state marriage can be contested in New York.  Typically, the family of the deceased spouse who stand to get a good amount of amount will contest the surviving spouse’s intestate claim against the estate. 

It seems that the most prudent thing to do is to have each spouse name each other in their respective wills. 

VII.  Domestic Partners

New York City’s Domestic Partner Law does not create a marriage relationship.  It creates certain rights between domestic partners regarding rent regulations (rent control and rent stabilization) and employment benefits offered by New York City and State.  For example, the New York City Transit Authority offers health insurance to both its employee and his or her “domestic partner” as if they were married.

A party entering a Domestic Partnership, which is registered with the City Clerk, is not entering a marriage.  Domestic partners do not have the same rights and obligations as spouses.


Governor Patterson’s Executive Directive is a step toward the recognition of same-sex marriage in New York.  New York’s recognition of other states’ same-sex marriages does not signal that New York will legalize such marriages without much public debate.   

New York’s recognition of other states’ same-sex marriages will open-up legal issues yet to be determined in New York. 

If you are going to another state for the sole purpose of entering a same-sex marriage, you should consult with an attorney regarding your property and inheritance rights. 

If you have a personal injury matter and if you had entered a marriage out of state, these issues should be discussed with your attorney regarding any potential claim for loss of services.

Mark E. Seitelman, 8/6/08,


3 Responses to Gay Marriage–Unanswered Legal Questions

  1. JoshWink says:

    Oh, Thanks! Really amazing. keep working!

  2. […] Governor’s executive order, which was discussed in our prior post, was attacked by a group against same sex […]

  3. […] we indicated in an earlier post, gay marriage presents many legal minefields.  See “Gay Marriage–Unanswered Legal Questions“.  We foresee litigation in both the personal injury field as well as the estates and family law […]

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