Same sex marriage widowers win death certificate dispute

By Corinne Lincoln-Pinheiro | Apr 7, 2017

TALLAHASSEE, Fla. — Two same sex marriage widowers won a class action ruling for the right to accurate death certificates of spouses that acknowledge their marriage and recognize the surviving spouse, according to court documents March 23.

Hal Birchfield and Paul Mocko married before same sex marriage was legal in Florida, and when their spouses died in 2013 and 2014, same sex marriage wasn’t federal law yet, at least not until Obergefell v. Hodges in 2015. Even retroactively, amending a spouse’s death certificate to acknowledge the same sex marriage and surviving partner’s name—though legal now—was unheard of without a specific court order. 

Birchfield and Mocko filed a class action in 2015, and in March were finally able to receive some measure of closure, their attorney, Karen Loewy of Lambda Legal, said.

“It’s really a basic constitutional law,” Loewy told the Florida Record, “that when the Supreme Court issued a ruling like Obergefell and applies it to the parties that are right before that court—that ruling applies retroactively. All of these marriage bans were unconstitutional from the get-go. This ruling really recognizes the breadth of that unconstitutionally and the need for a remedy for everybody who experienced that discrimination.”

Birchfield and Mocko challenged that they and others similarly affected couples had a constitutional right to immediately receive the same benefit same sex marriage couples enjoyed since Obergefell. They said the state had a duty to backdate the remedy to include all cases regarding of the status of any preceding or current litigation.

“Having a death certificate that erases your relationship and what you meant to each is incredibly painful,” Loewy said. “It’s inconceivable that [the ruling] could have gone the other way. This case provides a remedy for all surviving same sex spouses where the [partners] died before the marriage ban was struck down.” 

She said these individuals now have the respect and dignity that recognize their relationships, adding. “Frankly, the simplest and most straight-forward thing for the state to have done would have been to issue the amended death certificates in the first place and not insist that the surviving spouses would have to jump through hoops before they would be willing to amend death certificates.”

The court ruled the state could no longer require specific court orders to amend same sex death certificates, though they still require supporting and verifiable documentation. Additionally, the same sex marriage couple must be legally married at the time a spouse passes, and to amend a death certificate, the original must have omitted marital status and the surviving spouse’s name.

“Appeals usually runs 30 days from entry of judgment and we’re not even at two weeks yet,” Loewy said. “But it will be pretty shocking for the state to take a position that they’re not required to provide amended death certificates to same sex marriage spouses. It’s a really straightforward application of all of the rulings regarding marriage equality and it would be an act of supreme resistance for the state to want to appeal this, not to mention just cruel to do so.”

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