Happier days: Sarah Ellyn Farley (l) and Jennifer Tobits (r) on their wedding day in 2006.
The legal no-man's land that plagues many married and committed LGBT Americans is playing out in a nightmarish fashion for Jennifer Tobits, after losing her wife of four years, Sarah Ellyn Farley, to a long battle with cancer.
“Ellyn was the love of my life. No one should have to experience the pain of losing the person who means the most to you, only to face a shocking and hostile challenge to your marriage—your commitment, your life together, and everything you built as a couple.”
But that is exactly what David and Joan Farley, with the help of the Religious Right, are putting Jennifer Tobits through right now.
From the National Center For Lesbian Rights:
Sarah Ellyn Farley and Jennifer Tobits lived in Chicago and were married in Toronto in 2006. Two weeks after their wedding, Farley was diagnosed with a rare and aggressive form of cancer. The couple fought the disease together for four years until September 2010, when Farley passed away. She was 37. In their last few days together, Farley told Tobits she feared her parents, who had never respected her relationship with Tobits—and did not take part in their wedding celebration—would turn on Tobits after Farley’s death and do whatever they could to make sure that they, and not Tobits, would inherit Farley’s assets.
Shortly after Farley’s death, her parents [David and Joan Farley] filed a court action in Illinois probate court to take over the administration of her estate, telling the court that their daughter had “never married” and that they, and not Tobits, were her heirs. They also told Farley’s employer, a law firm, that they should receive their daughter’s death benefits under the firm’s profit-sharing plan, claiming that Farley had signed a form naming them her beneficiaries.
Farley's employer apparently unsure what to do, filed an interpleader action in Federal Court in January 2011. Farley worked as an attorney for the Chicago office of Philadelphia-based Cozen O'Connor law firm. The amount in question is $40,820. I presume Cozen O'Connor chose to take this matter to the court merely to cover their own liability bases.
More from National Center For Lesbian Rights:
Farley’s parents are represented by the Thomas More Society, an anti-gay legal organization. In press releases, the group’s executive director has referred to Tobits as a “leech,” who is trying to “pad her pocketbook.”
“When Ellyn was alive, her parents refused to respect her identity or to acknowledge her marriage,” said NCLR Legal Director Shannon Minter (right). “Now they are continuing to try to erase who she was and to pretend her relationship with Jennifer never existed. We are confident the courts will not let that happen.”
The Thomas More Society describes themselves as "pro-life law center" and have involved themselves exclusively in most of the pet causes of the extremist religious right; abortion clinic protesting, blocking marriage equality, civil rights issues but only as they related to their "religious freedom" and "right to speech." In 2006, the group filed a brief in a wrongful-death case over the destruction of a frozen embryo. The head counsel, Thomas Brejcha, depicted the case as “Dred Scott in a Petri dish." Their relationship to the Catholic Church is unclear, but they appear closely aligned with its doctrine and many Catholic institutions. Thomas More is a Catholic saint, after all.
Thomas More cites the Defense of Marriage Act in their filing, read it here, but DOMA has no application here. They also, oddly, cited Pennsylvania law, a state which neither woman resided.
The case will hinge on whether Jennifer Tobits meets the definition of "spouse" under Cozen O'Connor's profit sharing plan. And she does. As a point of law, DOMA is irrelevant. Citing it merely obfuscates the issue, and serves to prejudice the court against affirming any private company's prerogative to recognize a same-sex relationship. More is attempting to use the repudiated, constitutionally questionable law to override a private company's own right to define spousal benefits as the company itself deems best.
Whether Jennifer is recognized as Ellyn’s spouse—under the terms of the company plan—is key because a married person cannot name a beneficiary other than a spouse without the spouse’s consent.
The designation of beneficiary form is not valid without Jennifer Tobits' signature – and Jennifer did not sign it. There is an area where Jennifer’s signature was needed, and that area is blank. But a notary also filled out that section—in other words, notarizing a signature that wasn’t there. This is yet another reason that the form is invalid.
I am curious about the notary of the public who would notarize a form without a signatory? It seems an investigation is in order there. I certainly hope someone is bringing that issue to the proper authorities' attention. Notaries of the public who are negligent in their legal responsibilities should be a very serious concern to the whole legal system.
In researching this story, I have encountered reporting that Ellyn Farley did not sign the consent form, but that was reporting was in error. NCLR has confirmed to me Farley did sign the form, but reiterated, Jennifer Tobits did not.
NCRL and Tobits assert Farley's signature was obtained under duress.
Peter Breen, executive director and legal counsel of the Thomas More Society says:
“The deceased was fully aware of her rights under the law to designate her parents as the beneficiaries of her profit-sharing plan proceeds, even going so far as to state that she was ‘single’ in accord with the law. What Ms. Tobits is trying to do is circumvent both federal and state laws for her own financial gain. The Farleys merely seek to effectuate their daughter’s final wishes, while her alleged ‘spouse’ seeks to unjustly pad her pocketbook.”
Whether duress was applied or not, is a question that may be left for the court to decide.
There can be no question that, whatever prompted her to do it, Ellyn did sign it in the final hours of her life, from her deathbed, as she succumbed to her four-year battle with cancer.
And regardless, there can be no question that the required signature of the spouse, Jennifer Tobits, is missing. As such, the profit sharing proceeds cannot be awarded to anyone else.
It appears the case is sound for Jennifer Tobits. It is a shame she must go through this, and that the legal system is such a labyrinth filled with so many landmines for so many LGBT couples in this country.
This was a common dynamic during the AIDS crisis; hostile families, who callously rejected their gay, lesbian and trans children in life sprang from the woodwork after death to scavenge for what remained. Often the law says that's OK, and considers a longtime companion merely a legal stranger with no rights.
If David and Joan Farley are people of faith, and I suspect they are, I would encourage them to pray on this matter. I would ask them to think about how they honored their daughter in life, and how they are now honoring her in death. I think Ellyn Farley would weep to see how they've behaved to the woman Ellyn vowed to love and cherish until death did they part.