Estate of Bangor, Case No. 502014CP001857 (Fla. 15th Cir, Palm Beach, August 5, 2014)

Boca Raton attorney Andrew ‘Drew’ Fein successfully challenged Florida’s ban on gay marriage as applied to the appointment of a non-resident personal representative.

Florida law says you can’t appoint a non-resident to serve as personal representative of your estate unless that person’s your “spouse” or otherwise related to you. (See F.S. 733.304). This rule’s always struck me as an arbitrary trap for the unwary that doesn’t seem to serve any purpose other than create work for litigators (see here, here, here), and I’m not the only one that thinks so. In fact, in 1979 it was held unconstitutional by a federal trial court in Fain v. Hall, 463 F. Supp. 661 (M.D. Fla. 1979). Not wasting any time, the Florida Supreme Court stepped in the following year in In re Greenberg’s Estate, 390 So.2d 40 (Fla. 1980), in which the rule was rationalized as follows:

The state, in enacting these provisions, recognized that the administration of a decedent’s estate is an intensely localized matter requiring the personal representative to be thoroughly informed on local matters and to be available to the court, beneficiaries, and creditors of the estate. The state declares that these statutes serve the valid function of ensuring that the personal representative, if not a relative of the testator, is close enough in proximity to the Florida estate to protect the rights of the creditors, ensure that the estate will be probated without needless delays caused by travel, and reduce the cost of representation to the estate by reducing travel costs or preventing the need to associate an in-state representative.

But if residency is such an important requirement for Florida personal representatives, why is it OK to appoint my crazy non-resident uncle Joe, but not OK to appoint my non-resident college buddy who also happens to be a CPA with a genius I.Q.? Our Supreme Court didn’t even try to figure that one out, concluding instead that a statute doesn’t have to be perfect to be constitutional.

Pincus further maintains that the exemption in section 733.304 for nonresident relatives of a decedent demonstrates that the statute is irrational. We disagree. Where utilizing the rationality test, the equal protection clause is not violated merely because a classification made by the laws is not perfect. . . . Furthermore, we find that it is not unreasonable for an exception to be created for nonresident relatives because, more than likely, the nonresident relative will also be a beneficiary of the decedent’s estate.

United States v. Windsor changed everything:

Fast forward to 2014 and the constitutional challenge currently facing F.S. 733.304(3) is all about whether the non-residency exception for non-resident spouses also applies to same-sex couples. Until recently this argument would have been unthinkable in a place like Florida, which both in its state constitution (Article I, Section 27) and by statue (F.S. 741.212) has expressed unequivocal opposition to same-sex marriage. But everything changed after the U.S. Supreme Court’s 2013 ruling in United States v. Windsor, striking down as unconstitutional section 3 of the Federal Defense of Marriage Act, which defined marriage as a union between one man and one woman. After Windsor, our state attorney didn’t even show up to contest the issue.

Because the Amended Petition for Administration challenges the constitutionality of provisions of Florida law, Mr. Simpson properly gave notice of the challenge to the Florida Attorney General, Pamela Jo Bondi, pursuant to Florida Statutes Section 86.091. The Attorney General has not filed any response or an objection to the Amended Petition and did not attend the hearing.

Case Study:

In the linked-to order above a Palm Beach County probate judge ordered that W. Jason Simpson could serve as personal representative of the estate of his husband, Frank Bangor, who died March 14. The two men, together 37 years, were married Oct. 23, 2013, in Delaware and resided in Pennsylvania. Mr. Simpson, who was the sole beneficiary of the decedent’s estate and the named personal representative under his Will, would have been automatically barred from serving as personal representative unless he qualified as a non-resident surviving “spouse” under F.S. 733.304(3). Noting that Federal Courts in thirteen different states have all held that state laws prohibiting the recognition of same-sex marriages are now unconstitutional post Windsor, the probate court could find no “compelling state interest” in treating same-sex couples differently for purposes of the non-resident spousal exception under F.S. 733.304(3).

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 a fiduciary. Clearly, it was Mr. Bangor’s intent that Mr. Simpson serve as his Personal Representative and inherit all of his property.

Nothing in this Estate will be contested. This Estate would have been opened as a routine matter on this Court’s ex parte calendar but for their same-sex marriage. There is no rational basis to apply those laws to the facts of this case. Same-sex couples are entitled to respect, dignity and protection as any other spouse requesting to be a Personal Representative.

Here’s an excerpt from a Miami Herald piece entitled Florida must recognize gay widower’s Delaware marriage, Palm Beach judge rulesreporting on the case:

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.