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Legislative Memo: Funeral Leave for Same-Sex Partners

The death of a relative or spouse’s relative is often emotional and stressful. Recognizing this, many employers extend funeral and bereavement leave to employees when a relative, a spouse, or a spouse’s relative dies.

But because funeral and bereavement leave benefits often depend on spousal relations, same-sex committed partners, who are currently denied the right to legally marry in New York State, do not always qualify for leave when their partner or partner’s relative dies.

This bill would require employers who already extend funeral and bereavement leave for the death of an employee’s spouse or spouse’s relative, to do so for same-sex committed partners, as well. The NYCLU strongly supports this bill.

Employers who offer funeral or bereavement leave for the death of a spouse or spouse’s family member do so with the understanding that marriages create new family relationships. These new families warrant, in the eyes of employers who offer it, time away from work to attend a funeral and grieve the loss of a spouse or spouse’s relative.

But it is not a marriage license that, in and of itself, creates this new family relationship; it is the emotional and/or economic ties with one’s spouse and the spouse’s relatives that make them family.

Same-sex committed partners cannot legally marry in New York State, but this does not bar them from developing the same emotional and economic ties that married couples enjoy. These same-sex committed partners can go out of state to obtain marriage licenses and be considered married in this state, but they should not have to do so in order to benefit from their employers’ funeral and bereavement leave policies.

Extending benefits to non-marital families is hardly a novel concept in New York. For decades, New York law has extended family benefits to those in non-traditional family relationships. For example, New York City Rent and Eviction regulations bar a landlord from evicting the surviving spouse or a surviving family member of a deceased tenant.

In 1989, the New York Court of Appeals interpreted this regulation to apply to the unmarried same-sex partner of a deceased tenant. The Court stated that “the totality of the relationship as evidenced by the dedication, caring and self-sacrifice of the parties” should determine whether a familial relationship exists for the purposes of the regulation.

In other words, even though the partners’ relationship was not formally recognized under any law, the Court extended the regulation to them because their relationship resembled that of a family.

More recently, in 2010, the New York State legislature passed the Family Health Care Decisions Act (FHCDA), which extended the right to make serious medical decisions for incapacitated loved ones beyond spousal relationships.

Recognizing that family relationships exist outside of traditional marriages, the FHCDA empowers spouses, domestic partners, relatives, and close friends to make such medical decisions.

The 1989 Court of Appeals ruling, the FHCDA, and this bill have one important thing in common: they recognize that loving, familial relationships can exist with or without a marriage license. This is an important recognition, especially for the many same-sex committed partners who are currently barred from getting legally married in New York State.

But the recognition of non-marital familial relationships would be important and necessary even if same-sex couples could get married in New York. After all, it is not a marriage license that creates the emotional and economic ties that define committed relationships. For this reason, we believe that benefits like funeral and bereavement leave should extend to all committed partners – same-sex or opposite-sex, married or unmarried.

Because we think it is important for the law to continue to recognize all of our families, including non-traditional ones, we urge the Senate and Assembly to pass this bill.

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