dojA005484.xml

dojA005484.xml

born-digital

email

yes

no

2001-12-18

December 18, 2001


Mr. Kenneth L. Zwick
Director, Office of Management Programs
U.S. Department of Justice, Civil Division
Main Building, Room 3140950
Pennsylvania Avenue
Washington, DC 20530


Dear Mr. Zwick:

In reponse to your request for comments from the public regarding the guidelines for the federal compensation scheme, we would like to bring one concern to your attention.

I and certain of my colleagues are acting as "facilitators under the program established by the New York City Bar Association to provide legal services for people who lost family members in the September 11 attack on the World Trade Center. During the course of our work, we have encountered a number of people who lost their "common law" spouses in the attack. Although common law marriage is not recognized in New York State, we have come to realize that such relationship are quite common in some segments of the community, especially among immigrants. Not infrequently these relationships are of many years duration with children brought up by both parents as a family unit. However because state
law does not recognize common law marriages the surviving spouse of a common law marriage
has no entitlement under the laws of intestacy. Since many of the victims died intestate the financial hardship to surviving common law spouses (who are also suffering the same emotional loss and trauma as legally married spouses) can be great. As the federal government establishes procedures and guidelines for the federal compensation fund, we would strongly suggest that common law spouses of WTC victims, many of whom are parents of young children and who were dependent on the victim for their income and support have the same standing to make claims from the fund as legally married spouses.


Here is the story of one such person.

"H" was a database manager for a company located in the WTC. Until his death, H lived
with "W" and their two children, aged 9 months and 6 years, in Queens, New York. Although they were never legally married, H and W had lived as husband and wife for more than ten years and were joint owners of their co-op and jointly held the mortage on their apartment. The combined income of H and W was approximately $100,000 per year of which H provided approximately 75%.

After H's death on September 11, W found herself with few options. H had not made a
will and since W had not been legally maried to H, she is unable to inherit form under the rules of intestate succession in New York. In fact, she must petition for guardianship of her children's property simply to administrate H's estate on behalf of their children. Although W will be able to seek to be paid money from the children's share of the estate to help her support them, in order to do so she will have to petition the Surogate's Court. Since the Surogate's Court is primarily concerned with the perservation of the corpus of the funds until the children attain majority, she will most likely face obstacles in invading these funds. Finally, W will lose complete control over the funds once her children reach majority. With few assests of her own, W will have virtually nothing to support herself as she enters retirement.

In this particular instance, W's plight is complicated by the destruction of the records designating H's selection of beneficiaries under certain insurnance policies. H had several employer based insurance policies and a 401k plan. He had commented on many occasions, that in the event of his death, W would be well provided for. The 401k plan in particular was supposed to be their nest-egg. Unfortunately, any and all beneficiary information was kept by H's employer at its place of business and not communicated
to the insurers; the documentation was destroyed in the September 11 attack on the World Trade Center. Accordingly, it is likely that such funds will be distributed to H's heirs in intestacy-his children-and by-pass W altogether.

W has been terribly affected by this national tragedy. She lost the man she considered to be her husband, the father of her children and the primary income provider for her family. Her position is no different from that of legally married spouses except that she has none of the financial security that a legally married spouse in her position would have.

It is my understanding that W's situation is far form unique. In the period immediately following September 11, Governor Pataki, by executive order provided that non-married partners of WTC victims could make applications for emergency assistance form the Crime Victims Compensation Board. In so doing, the Governor stated: "[a] person shall be eligible for awards upon a showing of unilateral dependence or mutual interdependence upon such victims, which may be evidenced by a nexus of factors, including but not limited to common ownership of property, common householding, shared budgeting and the length of the relationship between such person and the victim." We suggest that that the federal fund adopts a standard that similarly recognizes the long-term losses and need of common law spouses such as W.

Sincerely,
Individual Comment
New York, NY

2001-12-18