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Florida must recognize gay widower’s Delaware marriage, rules Palm Beach County judge

BY STEVE ROTHAUS
srothaus@MiamiHerald.com

For the fourth time in 19 days, a South Florida judge has ruled against Florida's gay marriage ban, this time in the probate case of a Pennsylvania widower whose husband died suddenly in Boynton Beach.

Palm Beach County Circuit Judge Diana Lewis on Tuesday ordered W. Jason Simpson should be personal representative in the estate of his husband, Frank Bangor, who died March 14. The two men, together 37 years, were married Oct. 23, 2013, in Delaware.

In her ruling, Lewis notes that shortly after Bangor died, the state of Pennsylvania legalized gay marriage and that Florida’s anti-gay marriage laws “unnecessarily discriminate” against Simpson.

The couple bought their South Florida home in 2008. To make it easier to get a bank mortgage, only Bangor’s name is on the deed, said Simpson’s attorney, Andrew “Drew” Fein of Boca Raton.

“That’s why we had to do probate,” Fein said.

Florida probate law differs between residents and nonresidents. Any Florida resident can become someone’s personal representative if they are mentally and physically fit, not convicted of a felony and over age 18. Nonresidents, however, must also be “a spouse or a brother, sister, uncle, aunt, nephew or niece of the decedent” or blood relative.

In 2008, about 62 percent of Florida voters supported a constitutional amendment banning gay marriage and civil unions in the Sunshine State: “Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”

Bangor’s 2005 will leaves his entire estate to Simpson and names him personal representative. Florida’s constitutional amendment prevented Bangor from being listed as married on his Palm Beach County death certificate, and Simpson from being declared his personal representative.

“There is no justification in denying Mr. Simpson the privilege of acting as the fiduciary, based solely on the gender and sexual orientation of his now-deceased spouse,” Lewis wrote in her ruling.

Lewis, whose opinion only applies to this case, referred to rulings in previous state and national gay marriage cases to determine the outcome.

The gay-marriage battle is being waged across the nation. According to the national group Freedom to Marry, LGBT advocates have won more than 30 times in federal, state and appellate courts since June 2013, when the U.S. Supreme Court ruled in favor of Edith Windsor, a lesbian widow, and threw out a key portion of the 1996 Defense of Marriage Act.

The Bangor-Simpson ruling is the first time any Florida judge has recognized an out-of-state same-sex marriage, according to Daniel Tilley, a staff attorney for the ACLU of Florida, who is helping represent other married gay couples in a current federal lawsuit filed in Tallahassee.

The Palm Beach case is the fourth in under three weeks to undermine Florida’s gay marriage ban.

On July 17, Monroe Chief Circuit Judge Luis Garcia ruled the ban unconstitutional and that Aaron Huntsman and William Lee Jones of Key West could marry.

Eight days later, Miami-Dade Circuit Judge Sarah Zabel ruled six same-sex couples in South Florida also had the right to marry. Those decisions are valid only in the judges’ respective counties, and both rulings have been put on hold pending appeals by Attorney General Pam Bondi.

On Monday, Broward Circuit Judge Dale Cohen ruled Florida must recognize and then dissolve the Vermont civil union of a lesbian whose partner left her four years ago. Bondi’s office hasn’t responded in that case.

Bondi’s office did not file a response or an objection in the Bangor-Simpson case, Lewis wrote in her ruling.

Her office has 30 days to appeal, but Fein thinks that’s unlikely.

“I really respect Pam Bondi’s office not to oppose my client’s petition and to allow my client the same rights and privileges as any other widow or widower in an opposite sex marriage,” Fein said.

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