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A recent order issued in the 4th Judicial District of Minnesota might have some impact of its own on the rights of same-sex couples, even if so far it’s mostly been discussed in LGBT circles.

A marriage there is a marriage here

Probate ruling may have broad impact

The most bitterly debated political issue of this election year in Minnesota almost without question is the proposed constitutional amendment that, if successful in November, will define marriage as being between one woman and one man.

But a recent order issued in the 4th Judicial District of Minnesota might have some impact of its own on the rights of same-sex couples, even if so far it’s mostly been discussed in LGBT circles. Earlier this month, Hennepin County District Court Judge Jay Quam upheld an earlier ruling by Probate Court Referee George Borer that the surviving partner in a same-sex marriage performed in another state was entitled to inherit his partner’s assets, even though the decedent left no will.

“It’s an interesting case, and I think it’s difficult to separate the social implications of it from the legal implications,” said Chris Tymchuck, a Minneapolis probate and estate planning lawyer who frequently blogs on LGBT-related legal issues. “I was surprised at how many people I’ve talked to who’ve heard about this case.”

The case involved Tom Proehl and James Morrison, who were legally wed in California in October 2008, days before the ballot measure Proposition 8 disallowed any new same-sex marriages in that state. The two men, who had been together since 1987, lived in California from 2007 until 2010.

Six months after the couple moved back to Minnesota in late 2010, Prohel died unexpectedly. Although the men had decided verbally that all their assets would go to the surviving partner upon one of them dying, they had no written will. Under state law, Proehl’s estate would have gone to his parents, but Proehl’s parents disclaimed their interest in their son’s assets.

Borer, and later Quam, recognized the validity of Proehl and Morrison’s California marriage. They also noted that the state Uniform Probate Code has no language prohibiting the surviving member of a same-sex married couple from inheriting a partner’s assets.

The main issue to be decided was whether Minnesota’s 1997 Defense of Marriage Act (DOMA) would prohibit Morrison from inheriting Proehl’s assets. The court found that although the federal DOMA didn’t require states to recognize a same-sex marriage performed in another state, Minnesota’s version of DOMA did recognize such marriages, meaning Morrison was free to inherit his partner’s assets.

The right circumstances

Attorneys who work with same-sex and LGBT clients expressed initial surprise over the ruling, but maintained Quam’s order made sense once they read through it.

“I was pleasantly surprised by the ruling, but have always borne in mind that probate courts’ equity powers are intended to solve real-world problems, with an understanding that as times change, new problems will arise that they are called upon to adjudicate,” said Phil Duran, legal director at OutFront Minnesota, a Minneapolis nonprofit devoted to LGBT equality.  “Making sure that one spouse’s assets pass to the surviving spouse, as all involved apparently agree was the decedent’s intent, is the point of intestacy laws.”

Part of the reason Quam was able to rule that Morrison could inherit Proehl’s assets was a confluence of circumstances: Prop 8 didn’t invalidate any same-sex marriages in California; the two had a legally recognized marriage, as opposed to the civil unions that many other states allow same-sex couples; the language of Minnesota’s DOMA statute is more flexible in some ways than its federal counterpart; and maybe most important, Proehl’s parents disclaimed their right to their sons assets, which means Quam’s order can’t be appealed.

“Not all parents are that loving and understanding toward their child’s partner,” said Tymchuck. “If all the other circumstances were the same in another similar case, there’s no guarantee that the family would disclaim their rights.”

The legal implications of the order are unclear. Since the ruling came from the District Court and not an appellate court, other judges are free to consider it in the rulings or ignore it, according to Duran. He agreed with Tymchuck that it’s not entirely clear whether a similar case that involves a dispute between the surviving spouse and relatives of the deceased would turn out quite the same way.

“What if the couple had had a New Jersey civil union instead of a California marriage?” he asked  “What if they had not had any legal recognition at all, but routinely held one another out as their spouses and next of kin?  I do expect that the ruling will generate considerable discussion among attorneys about possible avenues for helping clients who may be in similar circumstances, as well as renewed discussion about the critical value of estate planning, even for people who appear young and healthy.”

The case could also have political consequences, with the potential that those in favor of a marriage amendment could seize on the ruling as the work of an “activist judge” that only proves the need for such an amendment.

“That’s usually the argument you hear, that a judge has taken a position,” said Minneapolis estate planning attorney Jonathan Burris. “Anyone who reads the order would see they have no basis to make that argument. But they will. The divisive nature of this amendment means that.”

But the overriding lesson in the case, and others like it, might be far more practical than political, according to Tymchuck.

“Have your estate in order. Have a will,” she said. “I deal with a lot of clients who were married in other states, and my fear is that they’ll take this to mean they don’t have to do any further planning.”

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