Gay Partner Cannot File Wrongful Death Suit

It had to happen sooner or later.

Neil allegedly died from medical negligence in New York. His partner, John, filed a wrongful death suit, alleging and proving that he and Neil had participated in a civil union in Vermont several years earlier and insisting that he could maintain a medical negligence suit.

The Associated Press reports that a divided appellate court in New York rejected the claim, saying that a ruling allowing John to maintain the action would be “taken as judicial imprimatur of same-sex marriages and would constitute a usurpation of powers expressly reserved by our Constitution to the Legislature.”

In Tennessee, John could clearly maintain the action if he were named executor or administrator of Neil’s estate. The real issue would be whether John would be entitled to any portion of the recovery, i.e. would Tennessee law declare that John and Neil were “married” so that John could recover wrongful death proceeds under the law of intestate succession.

There is no case on point.