NY State takes another step forward

NY State Gives Gays a Say in Burying Partners



(Albany, New York) In the closing hours of the 2005 session, the New York State Legislature passed a bill that provides domestic partners, both same-sex and opposite-sex, the ability to make decisions about the funerals of partners.

It allows New Yorkers to designate a person to carry out their wishes for the disposition of their body after they die. Additionally, the legislation extends domestic partners the same priority status in decision making as surviving spouses, creating historic significance for New York's LGBT community.

“For too long in New York, same-sex partners who live together and care for each other have been legal strangers when it comes to this critical moment,” said Alan Van Capelle, Executive Director of the Empire State Pride Agenda, New York’s statewide LGBT civil rights organization.

The 'death care proxy' is a simple, free, proxy form authorizing the appointment of an agent, space for special directions, to be signed in front of two witnesses, similar to a health care proxy. In instances where no one has been designated via a written proxy, a priority list of persons, including domestic partners, are established in statute to determine who has the right to control the disposition of an individual's remains.

"Over the years, scores of GMHC's clients have had severe difficulty with these issues," said Ana Oliveira, Executive Director of Gay Men's Health Crisis.

"They wanted to make arrangements but until this legislation no legal mechanism existed to ensure their wishes were followed. Because this bill gives domestic partners the same recognition as surviving spouses, we believe the many painful circumstances we have seen over the years can now be avoided."

The legislation received bipartisan support. The Democratic-led Assembly passed it by a vote of 94-25 and the Republican-led Senate passed an identical version by a unanimous vote of 58-0.

In defining a domestic partner, the bill provides for three different methods. For same-sex couples who are able to register their partnership with a government entity, the bill recognizes registration as sufficient proof for control of remains authority. Being formally recognized as a beneficiary or covered under a partner’s employment benefits or health insurance also provides this authority. If none of these methods is available or has been utilized by a same-sex couple, providing documents similar to what the private sector and New York State require for an employee to obtain domestic partner health insurance is also acceptable proof of a partnership.

When passing the bill, both the Assembly and the Senate agreed to further modify the third prong of this definition to have it conform more closely to the one used in the hospital visitation bill passed in 2004 where the focus was on demonstrating mutual dependence and the totality of circumstances that show mutual dependence. Both chambers are expected to adopt this change later in the year before the bill is sent to the Governor.

Passage puts legislators in line with New Yorkers on the issue. In a statewide poll conducted in March by Global Strategy Group for Pride Agenda, 83% of New Yorkers said providing this right to same-sex partners was important. Support crossed party lines with 89% of Democrats, 81% of Independents and 76% of Republicans believing control of remains authority is an important right that should be provided.