dojN002435.xml

dojN002435.xml

born-digital

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2002-01-18

January 18, 2002


By Federal Express with Attachments
By Fax and E-mail without Attachments

Mr. Kenneth L. Zwick
Director, Office of Management Programs
U.S. Department of Justice, Civil Division
Main Building, Room 3140
950 Pennsylvania Avenue
Washington, DC 20530


Comments on the Interim Regulations for the September 11 2001 Federal Fund:
The Case for Recognition of "Common Law" Spouses
Dear Mr. Zwick:
In response to your request for comments from the public regarding the interim
regulations for the federal compensation scheme, we write to propose that the regulations be
modified to recognize as encompassed in the term "spouse," what many states recognize as a
"common law" spouse.
A. Background to this Submission
By letter dated December 18, 2001, we submitted to the Special Master our
suggestion that the regulations governing the September 11 Fund recognize and protect the
interests of so-called common law spouses. By common law spouses, we mean domestic
partners who have lived in a spousal relationship, but have not been ceremonially married. A
number of states recognize common law marriage. Although they differ in their detail, broadly
speaking, the laws of such states typically require that there be no impediment to marriage (such
as another spouse) and that there be evidence of an agreement to live together as husband and
wife. Such agreement is normally evidenced by actual cohabitation and a variety of other factors
including, most importantly, the reputation of the couple amongst their friends and colleagues as
being husband and wife. Unfortunately, New York is not one of those jurisdictions that
recognize common law marriages. This places common law spouses of September 11 victims
who were domiciled in New York in an extremely precarious position.
Our concern is epitomized by the situation of a particular victim of the World
Trade Center attacks, &nbsp&nbsp&nbsp&nbsp . &nbsp&nbsp&nbsp&nbsp had lived with a victim of the attacks,
&nbsp&nbsp&nbsp&nbsp , for over ten years. They had two children together, a boy aged six and another son
who has just turned one, whom they were raising together as a family. They jointly owned their
apartment and both their names were on the mortgage. In the only surviving documentation
identifying beneficiaries of &nbsp&nbsp&nbsp&nbsp benefits, a stock option grant, he identified Ms. as the beneficiary and described her as his wife. Moreover, his friends and business
colleagues viewed her as his wife. For all practical purposes she was his wife.
Unfortunately, as noted, New York law does not recognize relationships such as
that between Mr. &nbsp&nbsp&nbsp&nbsp and Ms. &nbsp&nbsp&nbsp&nbsp to be marriages. Equally unfortunately, as did so
many September 11 victims, Mr. &nbsp&nbsp&nbsp&nbsp died intestate. The combined result is that Ms. &nbsp&nbsp&nbsp&nbsp
has no legal claim to any portion of Mr. &nbsp&nbsp&nbsp&nbsp estate. Although, under New York's law of
intestacy, Ms. &nbsp&nbsp&nbsp&nbsp two infant children will be among the beneficiaries of their father's
estate, Ms. &nbsp&nbsp&nbsp&nbsp will have to administer their money as guardian of their property. In this
fiduciary position, Ms. &nbsp&nbsp&nbsp&nbsp management of such funds will be supervised by the
Surrogate's Court and she will only be able to use the funds for the support and education of the
children as approved by the court. In a very real way, she will not be free to bring up her
children in the best way she judges, but will be subject to judicial oversight. And when they
attain their majority, she will be left with no financial resources other than whatever savings she
can make on her own income, currently $20,000 a year. Prior to his death, Mr. &nbsp&nbsp&nbsp&nbsp had been
the family's primary financial provider, earning approximately $70,000 a year, before bonuses
and tax. In light of the drastic reduction in her family's income upon his death and her very real
concerns for her own financial future without her husband's support, Ms. &nbsp&nbsp&nbsp&nbsp will be
obliged to continue working notwithstanding the needs of her children as a result of their father's
tragic and untimely demise.
In making our December 18 submission, it was our hope that the regulations
promulgated for the September 11 Victim Compensation Fund would permit common law
spouses in the position of Ms. &nbsp&nbsp&nbsp&nbsp some recovery. Regrettably, we do not believe that they
do so.
B. The Purpose of the September 11 Legislation
The stated purpose of Title IV of the September 11 Legislation, which created the
September 11 Victim Compensation Fund of 2001, is "to provide compensation to any
individual (or relatives of a deceased individual) who was physically injured or killed as a result
of the terrorist-related aircraft crashes of September 11, 2001."
In releasing the Interim Regulations, Special Master Kenneth Feinberg eloquently
described the Fund as "an unprecedented expression of compassion on the part of the American
people to the victims and their families devastated by the horror and tragedy of September 11.
In one important sense, the Fund symbolizes the commitment of the American people to
those most in need." He stated that the goal of the regulations is, "in an expedited and efficient
manner," to "provide fair, predictable and consistent compensation to the victims of September
11 and their families."
C. The Provisions of the Statute
The statute sets up a procedure whereby a claimant who is an "eligible
individual" may file a claim for compensation under the Fund. A claimant is an "eligible
individual" if he or she was on board one of the crashed planes or was present at the site of the
World Trade Center, the Pennsylvania crash site, or the Pentagon at the time of, or in the
immediate aftermath of, the crashes, and suffered personal injury or death as a result. In the case
of an eligible individual who is dead, the personal representative of the decedent shall be deemed
eligible to make the claim on the deceased claimant's behalf.
The claim shall be for economic and non-economic losses that the claimant
suffered as a result of the crashes. The statute provides that "economic loss" shall mean "any
pecuniary loss resulting from harm ... to the extent recovery for such loss is allowed under
applicable State law." In the case of someone killed at the World Trade Center, this will entail
determining what forms of economic loss can be recovered on behalf of that deceased person
under New York law. The statute does not look to state law to define non-economic loss, but
rather sets forth its own very broad definition.
Save for the general statement that the legislation's purpose is "to provide
compensation to any individual (or relatives of a deceased individual) who was physically
injured or killed as a result of [September 11]," the statute is silent as to who may be deemed a
beneficiary of an award made to a deceased person from the September 11 Fund and the manner
in which such an award should be distributed. The statute does not define "relatives." The
statute does not specify that state law shall govern either the determination of who may be the
beneficiary of an award made to a deceased person under the Fund or the definition of
"relatives." Such determinations accordingly fall within the general power of the Special Master
to "promulgate all procedural and substantive rules for the administration of this title."
D. The Interim Regulations
The Interim Regulations contain the following provision regarding the
distribution of an award to a decedent's beneficiaries.
Section 104.52. Distribution of award to decedent's
beneficiaries
The Personal Representative shall distribute the award in a
manner consistent with the law of the decedent's domicile or
any applicable rulings made by a court of competent
jurisdiction. The Personal Representative shall, before
payment is authorized, provide to the Special Master a plan for
distribution of any award received from the Fund.
Notwithstanding any other provision of these regulations or
any other provision of state law, in the event that the Special
Master concludes that the Personal Representative's plan for
distribution does not appropriately compensate the victim's
spouse, children or other relatives, the Special Master may
direct the Personal Representative [that] all or part of the
award be distributed to such spouse, children or other
relatives.
The Interim Regulations do not define "relative." They do, however, define a
"spouse" (subject to certain qualifications) as meaning a "person reported as spouse on the
victim's federal tax return for the year 2000," define "dependents" (subject to certain
qualifications) to mean "those persons so identified by the victim on his or her federal tax return
for the year 2000," and define "beneficiary" to mean "a person entitled under the laws of the
state of the decedent's domicile to receive payments or benefits from the estate of or on behalf of
the decedent on whose behalf the claim to the Fund was filed."
As such, the Interim Regulations do not protect the interests of "common law"
spouses, such as Ms. &nbsp&nbsp&nbsp&nbsp , whose husband, &nbsp&nbsp&nbsp&nbsp , was domiciled in New York. If
the distribution plan is to be made in accordance with New York law, Ms. &nbsp&nbsp&nbsp&nbsp will not be
entitled to recover any amount from the award made from the Fund in respect of Mr. &nbsp&nbsp&nbsp&nbsp ,
since New York law does not recognize common law marriages. Moreover, in light of (i) the
fact that the definition of "spouse" under the Interim Regulations would exclude Ms. &nbsp&nbsp&nbsp&nbsp
and (ii) the fact that the Interim Regulations fail to define the term "relative," it is wholly unclear
whether Ms. &nbsp&nbsp&nbsp&nbsp would even have recourse to ask the Special Master to modify any plan of
distribution that, following New York law, excludes her as a beneficiary.
E. Why the Regulations Should be Changed
As they stand, the above provisions of the Interim Regulations are fundamentally
unfair and lead to arbitrary and inconsistent results.
First, the failure of the Interim Regulations to deal with common law spouses in
the position of Ms. &nbsp&nbsp&nbsp&nbsp is fundamentally unfair. Ms. &nbsp&nbsp&nbsp&nbsp has suffered the same
emotional loss as any ceremonially married spouse of a victim of the terrorist attacks the loss
of the man with whom she had lived for more than ten years and the father of her two children.
She has to explain the loss of their father to her children and to deal with her own grief just like
any other spouse. She also has to face the same financial insecurities due to the loss of her
family's main source of income as any other spouse. In short, she has to face a future financially
and emotionally on her own just like any other widowed spouse.
Second, the Interim Regulations discriminate against common law spouses of
New York domiciled victims since the laws of a number of other states recognize common law
marriages. The victims of September 11 were domiciled all over the United States; any common
law spouses of victims domiciled in states recognizing this form of marriage would be entitled to
recover from an award under the Fund. Similarly, Washington D.C., the site of the Pentagon
crash, recognizes common law marriages. Thus, a common law spouse of a victim who was
domiciled in Washington, D.C., would be entitled to receive compensation from the Fund's
award to the victim. This is a federal fund what people whose loved ones have been killed
receive under it should not depend on the vagaries of the laws of individual states, particularly
where the application of such laws will result in two people in otherwise identical circumstances
being treated wholly differently the common law spouse of, for example, a Texas,
Pennsylvania or D.C. domiciled victim being permitted compensation as a spouse, the common
law spouse of a New York domiciled victim being denied any compensation at all.
Finally, even within the group of "common law spouses" of New York domiciled
victims, there will be little consistency. Recognizing the inherent equity of claims brought by
common law spouses, New York courts have, in the words of one commentator, "bent over
backwards to find common law marriages when a couple has spent the briefest of periods
together in jurisdictions that continue to recognize the doctrine." Thus, persons in similar
positions to that of Ms. &nbsp&nbsp&nbsp&nbsp , but who have been fortunate enough to have spent as few as a
couple of weekends in such a jurisdiction, would, under New York law, be treated as a spouse.
Such arbitrary matters as where a couple has spent a vacation should not be determinative of
whether the surviving partner of a familial relationship can receive compensation from a federal
fund designed to provide for the victims of this nation's worst terrorist attack.
In short, the Interim Regulations, as they pertain to the ability of a common law
spouse to be a beneficiary of a deceased claimant's award from the Fund, fail in their primary
mission to provide "fair, predictable and consistent" compensation to the victims of the
September 11 terrorist attacks.
F. Proposed Revisions
We propose accordingly five relatively simple amendments to the Interim
Regulations:
First, we propose that the definition of "beneficiary" in regulation 104.3(a) be
amended as follows (amended language is in italics):
(a) Beneficiary. The term beneficiary shall include:
(1) a dependent as defined in subsection (b) of this section, and
(2) a spouse as defined in subsection (c) of this section, and
(3) a relative as defined in subsection (d) of this section, and
(4) a person entitled under the laws of the decedent's domicile
to receive payments or benefits from the estate of or on behalf
of the decedent on whose behalf the claim to the Fund was
filed.
Second, we propose that the definition of "spouse" in regulation 104.3(c) be
amended as follows:
(c) Spouse. The Special Master shall identify as the spouse of
a victim:
(1) The person reported as spouse on the victim's federal tax
return for the year 2000 unless:
(i) The victim was married or divorced in accordance with
applicable state law on or after January 1, 2001; or
(ii) The victim was not required by law to file a federal
income tax return,
or
(2) In the event that no spouse is identified pursuant to
subsection (c)(1) of this section, the person who is the spouse
of a victim under the laws of the state of domicile of the victim,
or
(3) In the event that no spouse is identified pursuant to
subsections (c)(1) or (c)(2) of this section, the person who
cohabited with the victim under such circumstances that the
victim and the person held themselves out to be one another's
spouse. The existence of such a relationship may be evidenced
by a nexus of factors, including but not limited to, whether the
victim and such person lived together, the length of the
relationship between such person and the victim, whether the
victim ever described or referred to such person as his or her
spouse, whether friends, neighbors and business colleagues
viewed the victim and such person as spouses, in the event that
the victim and such person had children whether they lived
together with such children in a familial relationship, and such
factors as common ownership of property, common
householding and shared budgeting.
Third, we propose that the definition of "dependents" in section 104.3(b) of the
Interim Regulations be amended as follows:
(b) Dependents. The Special Master shall identify as
dependents:
(1) Those persons so identified by the victim on his or her
federal tax return for the year 2000 unless:
(i) The claimant demonstrates that a minor of the
victim was born or adopted on or after January 1, 2000;
or
(ii) Another person became a dependent in accordance
with then applicable law on or after January 1, 2001; or
(iii) The victim was not required by law to file a
federal income tax return for the year 2000;
and
(2) Persons who make a showing of unilateral dependence or
interdependence upon the victim, 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 relationship between such person
and the victim.
Fourth, we propose adding to section 104.3 of the Interim Regulations a definition
of the word "relative" as follows:
(f) Relative. For the purposes of these regulations, the term
relative of a victim shall be construed in its broadest possible
sense and specifically shall include, but not be limited to,
dependents as defined in these regulations.
Fifth, and finally, we would propose amending regulation 104.52 as follows:

The Personal Representative shall distribute the award in a
manner consistent with the law of the decedent's domicile or
any applicable rulings made by a court of competent
jurisdiction, save that for the purposes of determining whether
a person was the victim's spouse, the definition of "spouse"
set forth in these regulations shall be applied.
Together we believe that these relatively simple amendments will afford fairness
and consistency to the regulations and permit common law spouses to be recognized as spouses,
relatives and beneficiaries of deceased victims of the September 11 attacks regardless of the
vagaries of the laws of individual states and arbitrary circumstances such as where a couple
spent their vacations.
G. Conclusion
If the Fund is to "symbolize the commitment of the American people to those
most in need," it should not permit victims of the September 11 terrorist attacks to slip through
the cracks. If its objective is to provide "fair, predictable and consistent compensation" to
victims of September 11, it should treat like cases in a like fashion and should not permit
arbitrary factors, such as where a victim is domiciled or where a victim and his partner spent a
few days or weeks in the long history of their relationship, to determine the right of someone
who built a life with the victim to be compensated for their tragic loss. We strongly urge that the
Special Master consider and adopt our proposed amendments to permit common law spouses of
deceased victims of September 11 to be compensated from those victims' awards under the
Fund.
Naturally should you have any questions or wish us to provide further assistance,
we shall be more than happy to provide such answers and help as you may need.

Sincerely,

Individual Comment
New York, NY




ATTACHMENT 1


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 response 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 relationships 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 spouse) 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 mortgage 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 married to H, she is unable to inherit from him 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 Surrogate's Court. Since the Surrogates's Court is
primarily concerned with the preservation 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 assets 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 insurance 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 from 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 from the Crime
Victims Compensation Board. In so doing, the Governor stated: "[a] person shall be eligible for
awards upon a showing of unilateral dependence upon such victim, 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 needs of common law spouse such as W.


Sincerely,


ATTACHMENT 2
Martindale-Hubbell Law Digest 2001 - State Laws re: Common Law Marriages

ATTACHMENT 3
208 A.D. 2d 882
617 N.Y.S.2d 903
(Cite as: 208 A.D.2d 882)
C

ATTACHMENT 4
DOMESTIC RELATIONS LAW
ARTICLE 3. SOLEMNIZATION, PROOF AND EFFECT OF MARRIAGE

ATTACHMENT 5
SURROGATE'S COURT PROCEDURE ACT ARTICLE 17. GUARDIAN AND
CUSTODIANS
NY CLS SCPA § 1713 (2001)

ATTACHMENT 6
115 STAT. 230 Public law 107-42-SEPT. 22, 2001
TITLE I - AIRLINE STABILIZATION

ATTACHMENT 7
[Federal Register: December 21, 2001 (Volume 66, Number 246)]
[Rules and Regulation]
[Page 66273-66291]


ATTACHMENT 8
Rev. Rul. 58-66
1958-1 C.B. 60, 1958 WL 10653 (IRS RRU)
Internal Revenu Service (I.R.S.)
Revenue Ruling
Published: 1958
Section 151. -- ALLOWANCE OF DEDUCTIONS FOR PERSONAL EXEMPTIONS, 26 CFR
1.151-1: Deductions for personal exemptions.

ATTACHMENT 9
75 ORLR 709
(Cite as: 75 Or. L. Rev. 709) C
Oregon Law Review
Fall 1996
*709 A FEMINIST PROPOSAL TO BRING BACK COMMON LAW MARRIAGE

ATTACHMENT 10
STATE OF NEW YORK
EXECUTIVE CHAMBER
No. 113.30

2002-01-18