PART I: GENERAL PART
3. Policy arguments
3.2. Recent developments in family legal pluralism: Laws that recognize new
3.2.2. Area-specific reforms
Family pluralism has also been enhanced on a case-by-case basis by judicial courts.
Chapter II shows how several states have introduced a functional notion of family to
125 This is the case of Vermont and Hawaii.
126 Maryland, however, only recognizes the tax exemption for intra-familiar property transfers.
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allocate workers’ death compensation benefits, to allow recovery for infliction of emotional distress, and to compensate parties for the wrongful death of a family member. The change has been the result of either a judicial decision or of a legislative reform.
In some cases, it has resulted from a combination of both judicial and legislative reforms, as in the example that follows. In California, pursuant to the workers’
compensation law introduced after the Donovan decision,127 death benefits are payed to a spouse, children, or other dependents (which however must hold kinship with the deceased.) This approach is now also accepted in other states such as Arizona, Minnesota, and New Jersey, where the primary beneficiaries are presumed as dependent (usually the spouse and the children), and in Ohio, Georgia, and Colorado, where every beneficiary must show dependency.
In addition, many states include dependents among the persons qualifying to sue under wrongful death statutes. These include New Jersey, Virginia, Wyoming, and California.128 The majority of states also confer legal standing upon a broad array of persons holding kinship to the deceased, such as domestic partners or designated beneficiaries, grandchildren, parents, siblings, or those entitled to inherit under state law. Again, albeit the presumption of dependence only applies to spouses,129 the notion of family here adopted is much more “functional” than in other areas of law.
According to Professor Polikoff, the emphasis these statutes place on proof of dependency a is a good occasion to reflect on the objective of the law (compensate for loss of an economic provider,) and find definitions and measures carefully tailored to achieve this goal. For instance, the presumption of dependency that a spouse enjoys in many states disregards the fact that some married couples do not live together nor are financially inter-dependent, and therefore need not be compensated.130
When it comes to marital status discrimination in public accommodation, a similar (albeit much less marked) trend can be highlighted. A handful of states extend the protection of the anti-discrimination statutes to cohabiting couples and relatives.
127 Donovan v. Workers' Comp. Appeals Bd., 138 Cal. App. 3d 323, 187 Cal. Rptr. 869 (1982).
128 In the case of California, the dependent must also reside in the deceased’s dwelling.
129 Note that Michigan, Illinois, and Maryland require proof of dependency by the spouse as well.
130 Polikoff, supra note 33, at 198-99.
Among the twenty-one states which have enacted legislation in the field of housing, employment, or both,131 only a few go beyond a narrow definition that includes married people, single individuals, and divorced couples. This startling narrow interpretation has been put forward either as a result of statutory definitions132 or of courts’ constructions133 of these definitions.
There are some statutes which, by contrast, provide a broader definition encompassing cohabiting conjugal couples or blood relatives living together. An example of the former being Alaska, California and Massachusetts, and of the latter, Connecticut.134
Alaska has banned discrimination against non-married cohabiting couples both at the municipal and state level.135 Similarly, courts in California and Massachusetts have outlawed discrimination respectively in the context of the Fair Employment and Housing Act, 136 and in leasing agreements.137 The relevant schemes in Connecticut mandate that accommodation laws in the field of housing “shall not be construed to prohibit the denial of a dwelling to a man or a woman who are both unrelated by blood and not married to each other.” Friends (since they are unmarried and unrelated by blood) fall, albeit incidentally, within the purview of the law.
Many changes went into effect also through a judicial updating. The most illustrative area is probably that of tort recovery, especially recovery of damages for infliction of emotional distress.
As seen in Chapter II, starting from the pioneering decision in Graves v.
Estabrook,138 New Hampshire courts adopted a functional notion of family in defining the third requirement of the foreseeability test (that the parties be “closely related.”) Under the new approach, courts were directed to find that, regardless of
131 Lynne M. Kohm, Does Marriage Make Good Business? Examining the Notion of Employer Endorsement of Marriage, 25 WHITTIER L.REV. 563, 576 (2004).
132 See, e.g., NEB.REV.STAT. § 48-1102(12) (2010) (defining “marital status” to mean “the status of a person whether married or single”).
133 Manhattan Pizza Hut, Inc. v. N.Y. State Human Rights Appeal Bd., 51 N.Y.2d 506, 434 N.Y.S.2d 961, 415 N.E.2d 950 (1980) (applying the expressio unius to deny that the legislature intended to cover discrimination against non-marital cohabiting partners in the field of employment).
134 CONN.GEN.STAT.ANN. § 46a-64c(b)(1) (2009).
135 Foreman v. Anchorage Equal Rights Comm’n, 779 P.2d 1199 (Alaska 1989), at 1203.
136 Smith v. Fair Emp't & Hous. Com, 12 Cal. 4th 1143, 51 Cal. Rptr. 2d 700, 913 P.2d 909 (1996), at 914-15.
137 Attorney General v. Desilets, 418 Mass. 316, 636 N.E.2d 233 (1994).
138 Graves v. Estabrook, 149 N.H. 202, 818 A.2d 1255 (2003.
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labels, the parties were in a “stable, enduring, substantial, and mutually supportive”
relationship. The approach has then been adopted in Hawaii,139 Nebraska,140 Ohio,141 Tennessee,142 West Virginia,143 Pennsylvania,144 and to a more limited extent New Jersey.145
Likewise, in 1989, a New York court dealing with succession rights in a rent-controlled apartment, construed the term “family” under the rent control code as encompassing family members who have not formalized their relationship.146 In assessing the objective of the law, the Court concluded that the intended protection against sudden eviction should not rest on legal fictions, such as a marriage certificate or an adoption order. The Court set forth several criteria to go beyond
“fictious legal distinctions” and account for the “reality of family life,” amongst which is: “the exclusivity and longevity of the relationship, the level of emotional and financial commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services.”147 The test is an objective one. It is also a test where the totality of the circumstances of a relationship is controlling, and thus absence of one or more of the foregoing aspects is not dispositive.148
While the case Blake v Stradford149 in 2001 seemed to cast doubt on this doctrinal development, the principle that “[p]rotections against sudden eviction should not be determined by genetic history, but should instead be based on the reality of family life”150 was then reaffirmed on many occasions.151 This functional definition of
139 Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758 (1974) (permitting a stepgrandmother to recover for NIED).
140 James v. Lieb, 221 Neb. 47, 375 N.W.2d 109 (1985).
141 Paugh v. Hanks, 6 Ohio St. 3d 72, 451 N.E.2d 759 (1983).
142 Thurmon v. Sellers, 62 S.W.3d 145 (Tenn. Ct. App. 2001).
143 Heldreth v. Marrs, 188 W. Va. 481, 425 S.E.2d 157 (1992).
144 Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979).
145 Dunphy v. Gregor, 136 N.J. 99, 642 A.2d 372 (1994).
146 Braschi v. Stahl Assocs. Co., 74 N.Y.2d 201, 544 N.Y.S.2d 784, 543 N.E.2d 49 (1989).
147 Id, at par. 213.
148 Interestingly, the court justified this outcome by applying ordinary meaning as the controlling canon of construction. To that end, it quoted the (unusual?) Webster's Dictionary definition of
“family” as “a group of people united by certain convictions or common affiliation.” Id, at par. 212.
149 Blake v. Stradford, 188 Misc. 2d 347, 725 N.Y.S.2d 189 (Dist. Ct. 2001).
150 Williams v. Williams, 2006 NY Slip Op 26302, 13 Misc. 3d 395, 822 N.Y.S.2d 415 (Civ. Ct.).
151 Id; see also DeJesus v. Rodriguez, 196 Misc. 2d 881, 768 N.Y.S.2d 126 (Civ. Ct. 2003).
family has then been codified in various provisions of the rent stabilization code and in the implementing regulations.152