With the outcome of the interpleader action filed by Cozen O'Connor ( Cozen O'Connor, P.C. v. Tobits et al. ) still undecided, Jennifer Tobits has hired the National Center for Lesbian Rights to represent her in her case against the parents of her deceased wife, Sarah Ellyn Farley.
Tobits, who lives in Chicago, seeks to be recognized as the legal surviving spouse ( the couple married in 2006 in Toronto, Ontario, Canada ) and named as executor of her late wife's estate.
Farley's parents, David and Joan, are challenging the legality of the couple's marriage and have hired the Thomas More Society, an anti-gay legal organization, to represent them.
Farley died last September at 37 after a four-year battle with a rare and aggressive form of cancer. She was diagnosed with the disease just two weeks after their wedding and the couple fought for Farley's survival for four years. In the weeks before her death, Farley told Tobits that she feared her parents would fight Tobits to gain access to Farley's assets.
"Ellyn was the love of my life," said Tobits. "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."
Both parties are fighting for access to Tobits death benefits under her former employers profit-sharing plan. Tobits claims that Farley's parents pressured their dying daughter to designated them as beneficiaries just before she died. However, the law firm that Farley worked for, Cozen O'Connor, stated that the beneficiary form lacks Tobits signature which is required when a legal spouse wishes to release his or her claim to their money. According to NCLR, the designation is invalid both because it was signed under duress and because Tobits did not sign the form, which is required by the plan in order for the designation of a beneficiary other than a spouse to be valid.
Court documents provided by NCLR state that "upon information and belief, Ms. Farley suffered severe physical and emotional abuse by Cross-Defendants David M. Farley and Joan F. Farley in her childhood and adolescence. As an adult, Ms. Farley bore raised scars on her back that were noticeable to others, and which were a result of beatings by David M. Farley in Ms. Farley's adolescence." Farley's parents did not attend their wedding and have never recognized the validity of their daughter's relationship with Tobits.
"When Ellyn was alive, her parents refused to respect her identity or to acknowledge her marriage," said NCLR Legal Director Shannon Minter. "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."
"This is one of the most disturbing cases I have worked on in my 20 years of advocacy. Despite the enormous progress LGBT people have made, we are still not treated equally under the law. We have to keep fighting and in the meantime we have to do everything possible to protect our families because we cannot always count on the law to do that," Minter added.
The Thomas More Society, in its countersuit, contends that since Tobits and Farley got married in Canada, Tobits is not entitled to the money because their marriage is not legitimate in the United States under the Defense of Marriage Act ( DOMA ) . They further state that under the Employee Retirement Income Security Act a beneficiary form is not needed since the couple's marriage in Canada is not legal and the parents are rightful heirs of their daughter's estate.
"The deceased had the facts right when she completed her beneficiary form, stating that she was single, and had the right to designate her parents as the legal beneficiaries of the profit-sharing plan from her employer. What Ms. Tobits is trying to do is circumvent federal and state law for her own greedy financial gain. The Farley's [ sic ] lost a daughter and they gained a leech," said Peter Breen, executive director and legal counsel of the Thomas More Society in a press release. In speaking to Breen he added, "It's an odd case for NCLR to take on since what Ms. Tobits is trying to do is overturn the plans of her deceased partner regarding designation of assets."
NCLR is working with co-counsel Benjamin L. Jerner and Tiffany Palmer of Jerner & Palmer, P.C., Teresa Renaker and Julie Wilensky of Lewis, Feinberg, Lee, Renaker and Jackson, P.C., and Dan Ebner and Ray Prather of Prather Ebner LLP to defend Tobits's right to be recognized as Farley's spouse.
