Washington:  Many of the gay families of victims in the September 11 terrorist attacks on New York and Washington have been cut-out of the federal government's compensation plan.

Tuesday was the last day of a month-long public comment period on the compensation fund. People who accept payment from the fund give up their right to sue.

Kenneth Feinberg, the fund's special master, says the awards to cover lost wages, pain and suffering would average $1.6 million. But gay families will have to jump through hoops see any of it.

In a rare display of non-partisanship gay and lesbian Democrats and Republicans are calling on Feinberg to be more inclusive.

As it now stands, gay partners would have to be named as such in wills.  If they are not, it will be up to state governments to determine if they were "next of kin".

While New York has taken a compassionate view other states such as Virginia refuse to recognize gay surviving partners.

The interim final rule for who is eligible for claims states it has two objectives: “to provide fair, predictable and consistent compensation to the victims of September 11 and their families throughout the life of the program; and  to do so in an expedited, efficient manner without unnecessary bureaucracy and needless demands on the victims.” 

The Log Cabin Republicans and The National Stonewall Democrats said Tuesday that the rules are flawed and fall far short of ensuring “fair, predictable and consistent compensation” to victims’ families.

The two political groups said that even with wills designating a partner, family members often challenge such wills in state courts and, because of prejudice, succeed in eliminating the final intentions of deceased gay and lesbian people.

They also said that for the majority of victims who did not have wills leaving decisions to state governments is tantamount to excluding gay and lesbian partners

In a joint statement NSD and LCR said: "State probate laws, nearly without exception, fail to legally recognize relationships shared by same-sex couples and, therefore, serve to exclude gay and lesbian partners from qualifying as personal representatives, a categorization at the core of the Fund's decisioning system. Accordingly, the interim final rule, as a practical matter, serves to exclude the majority of gay and lesbian partner survivors from being considered as personal representatives."

The gay Democrats and Republicans also said that gay and lesbian partners of victims are needlessly excluded from the explicit list of eligible surviving beneficiaries.

The rules list the immediate family of the decedent (including, but not limited to, the decedent’s spouse, former spouses, children, other dependents, and parents),  the executor, administrator, and beneficiaries of the decedent’s will, and  any other persons who may reasonably be expected to assert an interest in an award or to have a cause of action to recover damages relating to the wrongful death of the decedent.

The statement from Stonewall Democrats and Log Cabin Republicans said: "We realize that some of the lack of specificity in certain language of Section 104.4 might provide the Special Master an opportunity to include same-sex partners in a compensation award by the Special Master exercising his discretion. However, for NSD, LCR, or any other organization dedicated to equality and fairness under the law, to rely on one person’s discretion in such an important federal program would be a dereliction of responsibility. Thus, the final rule, when promulgated, should make explicit that lesbian and gay partners will -- without doubt or need for the exercise of the Special Master’s discretion -- be treated fairly and equally."

There has been no reply from the Justice Department.