By Arthur Z. Schwartz
I’m running for City Council this month. I should be touting myself. But this is the Gay Pride Issue, and I want to write about an issue that I have now had to address twice as a lawyer: older gay couples who never marry (for all sorts of reasons) and then don’t leave a will that stands up to scrutiny.
One of those couples I dealt with involved two men, Bill and Tom, who had lived together for 55 years—going back to 1960. They were community leaders, known to all as a loving, open couple who owned a house together in the West Village. One was a successful businessman, and when they bought a house, perhaps because a mortgage was involved, only one of them had his name on the deed. Over the years they lived together they spent considerable time in New Hope, Pennsylvania, a small town that welcomed gay couples. They welcomed the advent of gay marriage and spoke frequently about marrying. They even bought rings. But as they got older and more frail, that trip to the Marriage Bureau down on Worth Street got delayed time and time again. Even suggested home visits by a local judge got put off.
Fast forward to when Bill dies. Tom presents a will to a lawyer suggested by a friend, and the lawyer gives him the bad news. The will, which leaves him everything, is no good. It has only one witness, and New York requires two. The lawyer then notifies Bill’s nieces and nephews, all but one of whom paid no attention to Uncle Bill, and they came swooping in to divide up the estate—a house now worth $7 million, and offer Tom a token sum of money.
Tom goes from lawyer to lawyer, and is told that he has no claim. But he came to me and I came up with an approach. New York does not recognize “common law marriages,” a marriage based on a couple living together as spouses, but never getting married. But it does recognize marriages recognized in other states. Turns out that before 2005 Pennsylvania recognized common law marriage, and that it even recognized it after one member of the couple died—as long as there was evidence. So now I had to establish that before 2005 Bill and Tom held themselves out as a married couple in New Hope at some time. We had difficulty finding anyone alive who had hung out with a now 85 year old plus couple, but we didn’t let on. But when the nieces and nephews began to talk settlement, we agreed, and Tom got 25% of the estate—and the right to live in the house rent-free for four years. At 89 he went to live, just as COVID started, with his genuinely loving niece, and grand- nieces and nephews near Rochester.
While this drama was unfolding, I received a call from Aida. Aida is a union leader who had a 22-year loving relationship with Ceci. They lived together at Aida’s house, and Ceci kept her official address with her mom. Ceci’s mom didn’t approve of their relationship, so Ceci and Aida never married, though they kept talking about doing it after her mother passed. But a year after her mother died, Ceci died (far too young) without leaving a will. As it turned out, Ceci had inherited several valuable pieces of property from her mother. But without a will, her property, worth millions, went to her brother and sister, neither of whom respected her relationship with Aida. Again, my Pennsylvania theory to the rescue. Aida had a house in the Poconos which they spent weekends and vacations at before 2005. And they have some good witnesses. That case is pending, delayed a long time by the COVID-related court shutdown. We have our fingers crossed.
Why tell this story? Because gay partners, if they want to protect their loved ones after they pass, either need to a) marry, or at least, if marriage is controversial or difficult, b) make sure they have an ironclad will, reviewed by a lawyer who has an estate practice. NO INTERNET DOWNLOADS! They don’t work! They are always done wrong.
Anyone who wants a consult—free—can call me at 212-285-1400.
Arthur Z. Schwartz is the Democratic District Leader for Greenwich Village and is a candidate for City Council in District 3—which is the Village west of 5th Avenue.
