WHARTON, Texas --
The transsexual widow of a fallen Wharton firefighter asked a court on Monday to throw out a lawsuit that would prevent her from collecting his death benefits.
Thomas Araguz III died while battling a fire at an egg farm in Boling, Texas, on July 3.
Araguz's mother and ex-wife, Heather Delgado, filed a lawsuit to dissolve his marriage to Nikki Araguz on the grounds that she was not female at birth so the marriage was never legal. Texas does not recognize same-sex marriages.
At a news conference Monday afternoon, Nikki Araguz and her attorneys claimed that there was a change in law last year that recognizes a sex change operation as an exemption to the same-sex prohibition.
Nikki Araguz said she had the last of a series of operations in Colorado in 2008, two months after the couple was married.
"My husband knew exactly what was going on, and he was fully loving and accepting and compassionate to the medical condition I was dealing with when we first met," she said. "And so, it was never a secret."
Nikki Araguz also filed a motion to collect $60,000 in death benefits from the state firefighters pension commission.
"I cry every day. I cry every day. I miss my best friend and my husband," she said.
Lawyers for Thomas Araguz's family and his ex-wife said they will not fight that part of the payout, which represents about one-tenth of the total survivors' benefits. They said they won't fight it because on the paperwork, Nikki Araguz is not listed as the captain's spouse, but rather as "other."
Delgado had two boys with Thomas Araguz. They are now 6 and 9 years old.
Delgado and Thomas Araguz's family have previously said Nikki Araguz should not receive any of the death benefits.
Nikki Araguz said she deserves half.
Under the current rules, at least half of Thomas Araguz's death benefits would go to his children.
The death benefits total at least $600,000.
Delgado and Thomas Araguz's parents are fighting to get 100 percent of the death benefits for the boys.
The judge froze all of Araguz's death benefits until the court decides if the marriage is legal.
Nikki Araguz's attorneys said they plan to ask one of the opposing lawyers to be removed from the case because of a conflict of interest. Attorney Frank Mann represented Nikki Araguz in a bankruptcy case eight years ago when she was married to another man. Mann said that in that case, sex was not an issue.
Nikki Araguz's parents said she suffered from a rare birth defect called complete androgen insensitivity syndrome, where a person has all of the physical traits of female, but has no uterus. They acknowledge the birth certificate listed in the lawsuit is Nikki Araguz's and that she was born Justin Graham Purdue.
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