New hurdles for survivors: how will gay survivors of the September 11 attacks cash in on the federal compensation fund? (Domestic-Partner Benefits).

It's a brand-new year, but the surviving partners of gay people killed in the September 11 attacks may feel as if they're stuck in the past. The Department of Justice's recent decision to refer to individual state laws to determine eligibility for the federal government's September 11th Victim Compensation Fund leaves gay people in legal limbo.

"Throwing it back to state law has reinforced the problems that already exist for same-sex partners to protect themselves," said Jennifer Middleton, staff attorney for Lambda Legal Defense and Education Fund, based in New York City. "In no state can we be married, so we won't be treated as spouses under these regulations."

According to Middleton, each case involving same-sex partners will have to be argued individually before Justice Department special master Kenneth Feinberg. Specifics such as whether the couples were registered partners or had drawn up legal wills shall factor into each decision.

Further complicating the situation is the legal stipulation that only one person may serve as the personal representative for each estate. That creates problems for surviving members of couples who did not designate each other as executor. "If there was no will," Middleton said, "[the surviving partner] won't be eligible to be the personal representative unless the family agrees."

That could cause a whole new set of problems, said Joe Tarver, a spokesman for New York's Empire State Pride Agenda. "For those who are not on good terms with [their partner's] biological family, it remains to be seen whether there will be a lot of leverage with this fund," he says.

Even in cases where couples were registered as domestic partners and had wills, the ruling has left plenty of wiggle room for the federal government. Middleton says that Feinberg can decide to follow estate law, in which case wills will be respected, or wrongful death law, which stipulates that the legally recognized next of kin receive compensation.

Middleton says gay and lesbian survivors are just now beginning the application process and can expect a long road ahead. "Everyone is in a different circumstance, and claims are very complex and require a lot of strategizing to determine the best approach," she adds. "Many people have questions and wonder what their best course of action is, and they are weighing their different options."