Lambda Legal Files Class Action in Florida Seeking Accurate Death Certificates for Surviving Same-Sex Spouses

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December 21, 2015
"It is a disgrace that the State of Florida makes Hal and Paul and other Florida widows and widowers like them, who lost their spouses before the state’s marriage ban was struck down, go to court to get an accurate death certificate."

(Miami) – Today, Lambda Legal filed a federal class action lawsuit in the U. S. District Court for the Northern District of Florida, Tallahassee Division on behalf Hal Birchfield and Paul Mocko, two gay widowers, and other Florida same-sex spouses in similar situations, who are seeking accurate death certificates for their deceased spouses that acknowledge they were married and recognize them as the surviving spouses.

“Every day that Hal, Paul, and other surviving same-sex spouses in Florida don’t have accurate death certificates for their loved ones is another day they are forced to bear the burden of discrimination and are denied the protections available to surviving different-sex spouses,” said Karen Loewy, Senior Attorney for Lambda Legal. “Both Hal and Paul were devoted to their husbands for decades. At the worst time in their lives—the death of their spouses—they should not be fighting to have their husbands’ death certificates say they were married. It is a disgrace that the State of Florida makes Hal and Paul and other Florida widows and widowers like them, who lost their spouses before the state’s marriage ban was struck down, go to court to get an accurate death certificate.”

Paul Mocko and Greg Patterson were together for 26 years and, in April 2014, they were married in San Francisco.  Having met in San Francisco in the 1980s, the two men, like so many gay men of their generation, became HIV positive and were told to spend down their life’s assets because they were not expected to live very long. When they survived, they had to rebuild their lives from scratch. Paul and Greg moved to Fort Lauderdale in 2009 as they prepared to take care of Greg’s mother, but the move was a struggle financially and they had to declare bankruptcy. They were living on limited income from Social Security and other benefits when Greg was diagnosed with stage four lung cancer. In July 2014, just months after their wedding, Greg passed away. When Paul received Greg’s death certificate, it said Greg was never married and in the section for spouse, it said “none.” Having lost the love of his life and half of the couple’s joint income, Paul has experienced tremendous financial stress since Greg’s death. When he sought to get Greg’s death certificate amended, he was told that he would not be able to get it corrected without a court order, which includes a filing fee of $401 and obtaining legal representation.

“It was hard enough to lose the love of my life, but when the funeral home told me that I would need to get a court order to get the State to give me a proper death certificate, that was heartbreaking,” Paul said. “I don’t even know where I would get the money to pay for this, and it is so stressful that the state has placed the burden of correcting their discrimination on my shoulders.”

After more than 40 years together, Hal Birchfield and James Merrick Smith traveled to New York in October 2012 and got married. Tragically, less than a year later, in September 2013, James died. Upon James’s death, Hal received a death certificate that failed to list James’s marital status as married, and failed to list Hal as his spouse. Lambda Legal successfully represented Birchfield in another matter in October when the Miami-Dade County Office of Property Appraisal agreed to reinstate his spousal homestead protections. He had been previously denied protections against certain tax increases for the home he had shared with his husband because their marriage was not recognized at the time of his husband’s death. The County agreed to reimburse Birchfield the taxes he paid while he contested the denial of the homestead tax protections.

“In life, the state of Florida’s marriage ban discriminated against us and disrespected our relationship, and now in James’s death, my home state continues to disregard our marriage,” said Hal Birchfield. “It’s an outrage and a shame that, even as a third generation Floridian, this state refuses to honor the relationship we had, even in death..”

Today, Lambda Legal filed a class action complaint on behalf of Hal Birchfield, Paul Mocko, and all surviving same-sex spouses whose spouses died before Florida’s marriage ban was struck down and whose marriages were not recognized by the state of Florida on their spouses’ death certificates. The complaint says the state of Florida’s refusal to issue amended death certificates to Birchfield, Mocko, and other surviving same sex spouses deprives these widows and widowers of the same protections different-sex widows and widowers receive and compounds the discrimination they have already faced at the hands of the State. This refusal is a violation of the due process and equal protection clauses of the US Constitution.

Read the filing.

Senior Attorneys Karen L. Loewy and Tara L. Borelli are handling the matter. They are joined by co-counsel David P. Draigh and Stephanie S. Silk of White & Case LLP.