Probate Court In New York

For Love and Money: Inequalities Remain Despite Same-Sex Marriage

New York is now the sixth and most populous state to legalize same-sex marriage, joining Massachusetts, Connecticut, Vermont, Iowa and New Hampshire, as well as Washington D.C.

Known to lawyers but perhaps not all clients, marriage is a state-based right that confers a "bundle of rights" on two individuals. Unfortunately, individual state recognition of same-sex relationships—whether in the form of a civil union, domestic partnership, or marriage—has no bearing at the federal level because the Defense of Marriage Act (DOMA) limits the definition of "marriage" to a union "between a man and a woman." This limited definition denies same-sex couples the automatic bundle of rights (more than 1,000 statutes and regulations, from joint filing of federal income tax returns to transferring fishing licenses between spouses) that are afforded opposite-sex married couples under federal law.

This means that even with New York's new law, same-sex spouses will not enjoy the same federal benefits as their opposite-sex counterparts—among them the unlimited marital deduction, unlimited spousal transfers, survivor and spousal Social Security benefits, the ability to take unpaid leave under the Family and Medical Leave Act when a spouse is ill, or even spousal privilege of communications in federal court—until DOMA is repealed. DOMA's demise may come soon but has not yet arrived. Until then, all same-sex couples must be proactive to protect their legal rights.

Some of the disparities that remain as a result of the conflict between federal and New York state law are discussed below.

Estate Planning

A last will and testament is critical for everyone. It was especially critical before the new law to financially protect a same-sex partner and children and ensure distribution of assets to them and not another blood relative. Before the new law, a same-sex spouse risked having his or her assets pass in intestacy to his or her parents if he or she died without a will. The new law avoids this often unintended result and resolves the previous uncertainty as to whether a Surrogate's Court would allow a same-sex spouse to inherit in intestacy under EPTL 4-1.1.

New Probate Court Judge Appointed in Denver County

On Wednesday, Governor John Hickenlooper announced the appointment of Elizabeth Leith to serve as Probate Court Judge in the Second Judicial District, which serves Denver County. Leith will replace the Honorable C. Jean Stewart, who is stepping down as of June 30, 2011. Leith, who is from Denver, will begin at the Denver Probate Court on July 1.

Leith is currently Magistrate Judge for the Second Judicial District, where she has served since 1999. Before becoming a magistrate, she served as an Assistant City Attorney for Denver, Human Services Section, and as Deputy District Attorney for the Fourth Judicial District, Child Enforcement Unit. Leith also spent time as an associate attorney and in private practice.

Leith earned her bachelor’s degree from Metropolitan State College of Denver and her law degree from the University of Denver College of Law.

New York current court decisions, being reports of cases decided at trial term, special term and chambers of the New York Supreme court first and second departments, the city court of New York and surrogates' courts of New York and Kings county, involving points of practice

New York supplement

Reports of cases argued and determined in the surrogates' courts of the state of New York

Rules for the Supreme court of New York, for the First judicial district, authorized by Chapter 553, Laws of 1895

New York Supreme Court reports, cases determined in the Supreme Court of New York