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Florida Judge Diana Lewis: Same Sex Marriage Ban Unconstitutional

Written by Jeffrey Skatoff • August 5th, 2014

Probate Litigation,  Resources,  Estate Planning,  Probate Administration,  

As the ban on same sex marriage continues to crumble nationwide, estate and probate cases are being decided.

Today, August 5, 2014, Palm Beach Circuit Court Judge Diana Lewis, Probate Division, ruled that Florida law prohibiting same sex marriage was unconstitutional pursuant to the United States Constitution and the United States v. Windsor decision of the United States Supreme Court.

In Estate of Bangor, Case No. 502014CP001857, the Court held that Frank Bangor's same sex spouse, W. Jason Simpson, was eligible to be appointed personal representative of a Florida ancillary probate estate.

Florida law limits who can be appointed personal representative of a Florida probate estate to persons related by blood or marriage to the decedent or residents of Florida.  Florida Statute Section 733.304.  Mr. Simpson was not a resident of Florida, and could therefore only be appointed personal representative if married to Mr. Bangor.

Mr. Simpson and Mr. Bangor were legally married in Delaware in October, 2013. Florida law, however, contains a number of prohibitions on any recognition of same sex marriage. The primary prohibition is found in the Florida Constitution, Article I, Section 27, which provides"

Marriage defined.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.

To further emphasize the point, Florida Statute Section 741.212 spells out the prohibition in greater detail:

(1) Marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state.
(2) The state, its agencies, and its political subdivisions may not give effect to any public act, record, or judicial proceeding of any state, territory, possession, or tribe of the United States or of any other jurisdiction, either domestic or foreign, or any other place or location respecting either a marriage or relationship not recognized under subsection (1) or a claim arising from such a marriage or relationship.
(3) For purposes of interpreting any state statute or rule, the term “marriage” means only a legal union between one man and one woman as husband and wife, and the term “spouse” applies only to a member of such a union.
If Florida's ban on same sex marriage were stricken as being inconsistent with the United States Constitution, Florida would be forced to recognize same sex marriage, including in the context of probate administrations.
Judge Diana Lewis relied on the recent decision from the United States Supreme Court, United States v. Windsor, which held that the Federal Defense of Marriage Act was unconstitutional.  Given that Florida's ban must also then be unconstitutional, the Full Faith and Credit Clause of the United States Constitution would require Florida's recognition of the same sex marriage.  As explained by Judge Lewis:
The State of Florida has not offered, and this Court cannot find, any compelling state interest in denying the Decedent's choice for his Personal Representative to serve in the State of Florida.  This Court routinely appoints non-resident surviving spouses as Personal Representatives without inquiry into the nature of their marriage.  While the courts cited above have considered and rejected many policy reasons proffered to support the ban on same-sex marriage, those reasons have no application to this Estate.  Indeed, Florida's Marriage Laws unconstitutionally impair Mr. Bangor's right to choose his Personal Representative, and Mr. Simpson's right to so act, not because of who they are married to, but only because of who they were married to, prior to Mr. Bangor's death.  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.  "The Marriage Laws" unnecessarily discriminate against this "spouse," who is recognized by other States as a "spouse," to act as fiduciary.  Clearly it was Mr. Bangor's intent that Mr. Simpson serve as his Personal Representative and inherit all of his property.
At least three other circuit courts in Florida have declared the same sex marriage ban unconstitutional, but this may be the first such case in the estate and probate area.