Lawyers Manual - Unified Court System

Domestic Violence in the LGBT Communities 413
14. Insured same-sex live-in partner was not a “spouse” entitled to
underinsured motorist coverage under the supplementary uninsured
motorist clause in the named insured’s automobile policy, even if the word
“spouse” could be understood to include same-sex partners living together
in a spousal-type relationship, absent evidence that the relationship
between the two was of this nature. Dicta suggested that with evidence,
same-sex couples might qualify as “spouse.” Ortiz v NYC Transit
Authority, 267 AD2d 33 (1st Dept 1999). Unmarried same-sex couples are
not considered “surviving spouses” under the Estates Power and Trust
Laws (EPTL). In the Matter of Cooper, 149 Misc 2d 282 (Sur Ct Kings Co
1990), aff’d, 187 AD2d 128 (2d Dept 1993), lv dism, 82 NY2d 128. Nor
was a domestic partner of a flight attendant who died in an airplane crash a
“surviving spouse” for purposes of seeking death benefits. Valentine v
American Airlines, 17 AD3d 38 (3d Dept 2005). Similarly, derivative lossof-consortium
claim can not be maintained based on claimant’s status as
registered domestic partner in New York City because lawful marriage is
required. Lennon v Charney, 797 NYS2d 891 (Sup Ct, Westchester County,
2005). Most recently, the Appellate Division, Second Department held that
a surviving partner of a same-sex Vermont civil union was not a “surviving
spouse” within the meaning of the EPTL’s definition of classes of
decedent’s distributees and therefore could not bring a wrongful death
action arising from his partner’s death. The Court of Appeals dismissed
appeal from the Second Department. Langan v St. Vincent’s Hospital of
New York, 196 Misc 2d 440 (Sup Ct Nassau Co 2003), rev’d, 2005 WL
2542658 (2d Dept 2005), app dism, 6 NY3d 890 (2006).
15. Although we have found no case law on point, from speaking to trans
activists and attorneys it appears that, for the purposes of the Family Court
Act or Domestic Relations Law, the courts will likely define an “opposite
gender” partner as a partner with the gender that is the opposite of the trans
client’s birth certificate gender (and not his/her gender identity if it is
different from that of the gender on his/her birth certificate). For example,
a male-to-female transwoman would identify as a woman, but if her birth
certificate still reflects “male” as a gender, the courts will likely, for the
purposes of granting marriage licenses, etc., define her as “male.”
16. The Court of Appeals, in Hernandez v Robles, 794 NYS2d 579 (Sup Ct,
NY County, 2005), rev’d and vacated, 26 AD3d 98 (1st Dept 2005), aff’d,
2006 WL 1835429 (2006), held that the Domestic Relations Law
prohibited same-sex marriage and did not violate the equal protection or
due process clauses of the New York State Constitution, and that “. . .
whether such marriages should be recognized is a question to be
determined by the Legislature.”