P000435
Congress of the United States
House of Representatives
Washington, DC
February 4, 2002
Mr. Kenneth Feinberg:
Thank you for meeting with Congressional Staff on Friday and for staying accessible to review my
comments and those of other Members of Congress. My counsel, , has informed me that you are taking some steps to address some of the concerns I have raised regarding same-sex couples and others persons financially and emotionally dependent on the victims of the September 11 terrorist attack. tells me you have asked that we contact you to continue the dialogue and clarify some unresolved details, and I write in order to do so.
A. New York State Public Policy for Domestic Partners of September 11 Victims
First, I understand you have agreed that if a state uses state VOCA funds to compensate same-sex
or other domestic partners of victims, you will honor, that state's policy and apply the same
principle to the Federal fund. When a victim has been killed, New York Executive Law 324(b)
and (c) provides funds to a victim's "surviving spouse," parents, children, and "any other person
dependent for his principle support" upon the victim. Prior to October 2001. New York cases
interpreting this law required a gay man or lesbian to receive at least 75% of his/her support form
his/her life partner/crime victim in order to receive an award under the fund while heterosexuals
married to their victim/spouse could receive an award even if they, and not the victim/spouse,
were the primary wage earner.
On October 10, 2001, Governor Pataki issued the attached Executive Order 113.30 that we have
provided you in the past. In the Order, Governor Pataki not only relaxed the 75% requirement to
50% for crime victims, but for dependents of September 11th victims, he virtually erased the
distinction previously made in the New York Executive Law between heterosexual and
homosexual couples. The order provides that a "dependent person shall be eligible for awards
upon a showing of":
"unilateral dependence or mutual interdependence upon such a victim, which may
be evidenced 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 victim."
This "mutual interdependence" standard ensures that same-sex couples will be treated
equivalently to all but the most estranged of heterosexual married couples.
It is important, of course, that New York's public policy of equal treatment among victims-
among heterosexual married couples, homosexual couples, and other domestic partners-be
applied to the September 11th Fund even in the case of an objection by a family member. Under
New York Law, no objection by a victim's children, her parents, or -to use your example-her
Aunt Minnie prevents VOCA funds from going to a mutually interdependent domestic partner.
So in order to follow New York's public policy in the Federal sphere, I hope you would do the
same.
As was pointed out at the meeting, state probate laws were designed primarily to distribute a
deceased person's property and therefore apply primarily in cases where an elderly person or a
person with a terminal illness has had time to plan out the distributions and , if he or she has
substantial assets, to write a will. People in their twenties and thirties who die a sudden violent
death are not at all the typical circumstance to which probate laws usually apply, and I think
Governor Pataki recognized this by making the exceptions he did in his Executive Order. I would
note further that at the meeting, you described the Fund as more a Federal "safety net" for those
dependent on the victims than a wrongful-death compensation program, and I would think that
someone mutually interdependent on a victim in far more in need of such a safety net than a
victims distant relative, such as your example of "Aunt Minnie"
This discussion leads to the following questions:
1) If a same-sex couple or other domestic-partner relationship meets the Pataki standard of
mutual interdependence as described in Executive Order 113.3, will you provide the award
to a domestic partner domiciled in New York, even if there is an objection by other family
members?
2) If other State governors follow Governor Pataki's lead with similar Executive Orders.
will you follow the same policy in these States?
B. Awards to Domestic Partners Absent Objections form Family in States Without Public Policy
on Awards to Domestic Partners
reported from the staff meeting that you supported domestic partners receiving awards where the family did not object. You stated a family member who would otherwise receive an award could do this in two ways: (1) by endorsing the award check to the domestic partner: or (2) by waiving his or her right in advance of the award. Unfortunately, as another staffer pointed out, option (1) would likely lead to a large gift-tax assessed against family member and so it is practically not an option. As to option (2), I want to clarify who has to make the waiver for the domestic partner to get his/her share.
In many states, where there is no surviving spouse (as in the case of most gay couples who are not
allowed to form civil marriages or, except in Vermont, civil unions), the award goes to the
children, and, if there are no children, the parents receive next, then siblings, then aunts, uncles,
cousins, etc. Let me raise the hypothetical case of domestic partners living in mutual
interdependence where the victim has no (legal) spouse, no children, one surviving parent, and a
number of surviving, siblings, aunts, uncles, and cousins. Assume under the probate law of the
state of domicile, this parent would inherit all of the victims estate, and the siblings and other
relatives would receive nothing. This raises the following questions:
1) If the sole legal heir-in this case the parent-waives his or her right in favor of the
domestic partner, would the award go to the domestic partner?
I hope you would not require every sibling, aunt, uncle, first, second, third, and sixth cousin
waive their rights as well.
2) If the answer to question 1) is yes, could you award the amount directly to the domestic
partner so that the legal heir(s) do not have to face gift taxes?
C. Extraordinary Circumstances
I understand that you have discretion in "extraordinary cases" to re-allocate funds to domestic partners even in states that do not have a public policy regarding domestic partners when the otherwise lawful heir does object. I am informed that this possibility - which you termed the "Barney Frank provision" -- has been endorsed by the Attorney General. If this is true, I am gratified to hear it, and I would urge you, in the interests of fairness, justice, and the "safety net" that Congress intended, to apply this principle generously when the situation warrants.
Barney Frank
BF/ml
cc: The Feinberg Group, LLP
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