PR: Title II Regional Chief Counsel Precedents
TN 12 (02-18)
A. PR 15-192 A Same-Sex Marriage-Like Relationship in British Columbia, Canada
Date: September 14, 2015
1. Syllabus
Since the number holder (NH) was domiciled in British Columbia, Canada at the time of his death, we apply the laws that the District of Columbia courts would apply to determine whether a valid marriage existed at the time of the NH’s death. Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into (the law of British Columbia, Canada).
There is no allegation that a common-law or ceremonial same-sex marriage occurred between the claimant and the NH. Therefore, if the claimant cannot be entitled to widower’s benefits based on a marriage to the NH, the claimant may be deemed to be the widower in determining the devolution of intestate personal property in which the claimant would have the same status as a widower of the NH with respect to taking of such property. In this case, the NH and claimant had a “marriage-like” relationship for 23 years (more than 2 year requirement), which under the law of British Columbia, would give the claimant the “same status” as a widower of the NH with respect to inheritance of the NH’s intestate personal property. Therefore, the agency can find that the couple satisfies the relationship requirement for purposes of Social Security widower’s benefits.
2. Opinion
QUESTION PRESENTED
Whether two residents of British Columbia, Canada, satisfy the relationship requirement for purposes of widower’s benefits based on a marriage-like relationship.
SHORT ANSWER
Yes. In this case, because the claimant and the number holder (NH) lived with each other in a marriage-like relationship for longer than two years, the agency can find that they satisfy the relationship requirement for purposes of Social Security widower’s benefits.
SUMMARY OF EVIDENCE
The claimant, J~, filed for widower’s benefits and the lump sum death payment on the record of the NH, B~. As part of the claim, the claimant completed a Statement of Marital Relationship form over the telephone. According to the claimant, he was in a same-sex, marriage-like relationship with the NH since January 1990. They lived together in N~, British Columbia, Canada for over twenty-three years. They never married but held themselves out as “life partners” with the understanding that they would live together forever. The NH died on September XX, XXXX.
As evidence of their relationship, the claimant has submitted a variety of illustrative documents:
Canadian 2012 tax return summary estimate for 2013;
Canadian T3 trust income tax and information return for the W~ Family Trusts for 2003;
Last Will and Testament of NH dated February XX, XXXX;
Power of Attorney for NH dated February XX, XXXX, appointing claimant as NH’s primary representative;
State of Title Certificate for claimant and NH issued in June 2002;
The 2004 Rural Property Tax Notice issued to claimant and NH;
Joint financial account from TD Canada Trust as of May XX, XXXX, and May XX, XXXX; and
Joint TD Waterhouse account as of November XX, XXXX and May XX, XXXX.
ANALYSIS
I. Law Concerning Same-Sex Marriages
Generally, an individual is entitled to widow’s or widower’s benefits if that individual:
(1) is the insured’s widow or widower and the marital relationship lasted at least nine months before the insured died;
(2) files an application;
(3) is at least 60 years old;
(4) is not entitled to an old-age benefit that is equal to or larger than the insured person’s primary insurance amount; and
(5) is not currently married. Sections 202(e), 202(f) of the Act; 20 C.F.R. § 404.335. Similarly, upon the death of a person who died as a fully or currently insured individual under the Act, a lump-sum death payment may be paid to the widow or widower of the insured who was living in the same household at the time of death. Section 202(i) of the Act; 20 C.F.R. § 404.391.
Here, at the time of the NH’s death, the NH was domiciled in British Columbia, Canada. Because the NH was not domiciled in the United States when he died, we apply the laws that the District of Columbia courts would apply to determine whether a valid marriage existed at the time of the NH’s death. See section 216(h)(1)(A)(i) of the Act; 20 C.F.R. § 404.345, POMS GN 00210.066B.2.a. See section 216(h)(1)(A)(i) of the Act; 20 C.F.R. § 404.345, POMS GN 00210.006(B)(2). Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946). The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942).
As pertinent here, the District of Columbia began formally recognizing the validity of same-sex marriages entered into in other jurisdictions beginning on July 7, 2009. See Section 1287a of the Jury and Marriage Amendment Act of 2009, D.C. Code § 46-405.01 (“A marriage legally entered into in another jurisdiction between 2 persons of the same sex that is recognized as valid in that jurisdiction, that is not expressly prohibited . . . , and has not been deemed illegal . . . , shall be recognized as a marriage in the District.”). Accordingly, it is clear that from July 7, 2009, the recognition of same-sex marriages performed in other jurisdictions does not appear to violate a strong public policy of the District of Columbia.
Same-sex marriages have been valid in British Columbia, Canada, since May 1, 2003, when the British Columbia Court of Appeal recognized same-sex marriage but suspended its decision until “July 12, 2004, solely to give the federal and provincial governments time to review and revise legislation to accord with this decision.” Barbeau v. British Columbia (Attorney General), [2003] B.C.C.A., 251, para. 7. However, on July 8, 2003, the Court lifted the suspension, giving full effect to its decision. Barbeau v. British Columbia, [2003] B.C.C.A., 406. Thus, same-sex marriages became legal in British Columbia at least as of July 8, 2003.
Furthermore, on July 20, 2005, the Civil Marriage Act legalized same-sex marriage across Canada by defining marriage as “the lawful union of two persons to the exclusion of all others,” and instructing that “a marriage is not void or voidable by reason only that the spouses are of the same sex.” Civil Marriage Act, S.C. 2005, c. 3, § 4 (Can.).
However, here there is no allegation that a common-law or ceremonial same-sex marriage occurred between the claimant and the NH.
II. Law Concerning Other Types of Same-Sex Relationships
If the claimant cannot be entitled to widower’s benefits based on a marriage to the NH, the claimant may nevertheless be deemed to be the widower, if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a widower of the NH with respect to the taking of such property, if the NH were to die. See § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345. Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). As previously noted, the claimant and the NH lived together in British Columbia, Canada. Accordingly, to determine whether this relationship would allow the claimant to have the requisite status as a spouse with respect to inheritance of the NH’s intestate property, we apply the law of British Columbia, Canada.
British Columbia’s Estate Administration Act, and the subsequent Wills, Estates, and Succession Act, which came into force on March 31, 2014, provide the rules for intestate succession.1 The Estate Administration Act’s definition of spouse included “common law spouse,” which meant either:
(a) A person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or
(b) a person who has lived and cohabitated with another person in a marriage-like relationship, for a period of at least two years immediately before the person’s death.
Estate Administration Act, S.B.C. 1996, c. 122, pt. 1, available at:
http://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-122/104764/rsbc-1996-c-122.html#Part_1_General_498. The Wills, Estates and Succession Act does not refer to “common law spouse,” and instead states, “2 persons are spouses of each other for purposes of this Act if they were both alive immediately before a relevant time and (a) they were married to each other, or (b) they had lived with each other in a marriage-like relationship for at least 2 years.” Wills, Estates and Succession Act, S.B.C. 2009, c. 13, pt. 2, available at
http://www.bclaws.ca/civix/document/id/complete/statreg/09013_01#section2.
The expression “marriage-like relationship” is found in a number of British Columbia’s statutes that deal with the rights and obligations of unmarried couples. British Columbia’s Court of Appeal has held that the expression should be interpreted the same across statutes in “all cases where it is used to describe the status of two persons who have chosen to live together in a certain way.” Austin v. Goerz (2007) 74 B.C.L.R. 4th 39, para. 32 (Can. B.C. C.A.), available at: https://www.canlii.org/en/bc/bcca/doc/2007/2007bcca586/2007bcca586.html?searchUrlHash=AAAAAQA0bWFycmlhZ2UtbGlrZSByZWxhdGlvbnNoaXAgY29tbW9uIGxhdyBHb3N0bGluIFRha2FjcwAAAAAB.
Thus, it appears that under the law of British Columbia, a partner of a NH in a “marriage-like relationship” would have the “same status” as a widower of the NH with respect to the inheritance of the NH’s intestate personal property. See § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.
The legal test for determining whether a particular relationship is “marriage-like” is whether it was the parties’ subjective intention to be in a “marriage-like relationship.” Gostlin v. Kergin (1986), 3 B.C.L.R. 2d 264, page 5 (Can. B.C. C.A.), available at: https://www.canlii.org/en/bc/bcca/doc/1986/1986canlii164/1986canlii164.html. In Gostlin, the Court stated:
If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been “Yes”, then they are living together as husband and wife. If the answer would have been “No”, then they may be living together, but not as husband and wife.
Id. at 5. However, the Court notes that sometimes ascertaining intention can prove difficult in particular circumstances, in which case objective factors can be relied upon:
Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependent on the other, in accordance with a mutual arrangement?
Id. at 6.
The Court enunciated additional factors indicating a “marriage-like relationship” in Takacs v. Gallo (1998), 48 B.C.L.R. 3d 265 (Can. B.C. C.A.), available at: http://www.canlii.org/en/bc/bcca/doc/1998/1998canlii6429/1998canlii6429.html
In that case, the Court held that courts must focus first on the intentions of the parties to live in a marriage-like relationship, using objective factors to divine those subjective intentions. Id. para. 53. The Court noted that although the parties may not explicitly acknowledge that a marriage-like relationship exists, “conduct speaks louder than words.” Id. para. 40.
Objective factors that may be relevant in determining the parties’ intentions are seldom determinative in and of themselves; many people who live together, and meet many of these objective criteria, do not actually intend or enter the kind of psychological and emotional union generally associated with marriage. Id. para. 55. Therefore, courts must recognize the uniqueness of each relationship and apply a flexible approach when considering the various objective criteria provided in the authorities. J.J.G. v. K.M.A. (2009), 71 R.F.L 6th 349, para. 37 (Can. B.C. S.C.), available at:
https://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc1056/2009bcsc1056.html
III. The Claimant’s Application
The claimant and the NH had a marriage-like relationship that lasted for much longer than the two-year period required under the law. They lived together for more than twenty-three years and held themselves out as “life partners.” The documents the claimant submitted showed they comingled finances, jointly owned real property, and filed taxes as common-law spouses. They also created a family trust with their separate children as equal shareholders in the trust. Further, the NH named the claimant as executor and trustee of this estate upon his death, but in the event the claimant could not exercise these duties, the NH named his son and the claimant’s son to jointly act as executor and trustee. All of this evidence shows that this couple was in a marriage-like relationship and therefore were spouses for purposes of British Columbia’s law of intestate succession.
CONCLUSION
It is our opinion that under the laws of British Columbia, Canada, the claimant and the NH were in a marriage-like relationship and would be considered spouses for purposes of intestate succession. Thus, the agency can deem that the couple was married for social security purposes. Accordingly, assuming all the other eligibility requirements are met, the claimant may be entitled to benefits as the NH’s widower.
B. PR 15-050 T~’s Entitlement to Spouse’s Benefits on the Account of Number Holder C~ , Involving the Validity of a Same-Sex Marriage Performed in British Columbia, Canada Under District of Columbia Law— Life Case — REPLY
Date: December 12, 2014
1. Syllabus
The claimant and number holder (NH) entered into a same-sex marriage on July XX, 2008, in Quebec, Canada. The NH continues to reside in British Columbia. Because the NH resided in Canada at the time the claimant applied for benefits, we apply District of Columbia law to determine whether they were validly married. Because same sex marriages had been legal in British Columbia since July 8, 2003, the District of Columbia would recognize their marriage as valid. Therefore, the claimant can be determined to be the surviving spouse of the NH for purposes of spouse’s benefits.
2. Opinion
QUESTION PRESENTED
T~ (claimant) and, C~, the number holder (NH), entered into a same-sex marriage on January XX, 2006, in British Columbia, Canada. Does the claimant qualify as the NH’s spouse for purposes of determining her entitlement to spouse’s benefits?
OPINION
Yes. The claimant qualifies as the NH’s spouse. Accordingly, if the claimant meets the other criteria for entitlement to spouse’s benefits, the agency should find that she is entitled to spouse’s benefits on the NH’s record.
BACKGROUND
The claimant and the NH entered into a same-sex marriage on January XX, 2006, in British Columbia, Canada. The NH continues to reside in British Columbia. On June XX, 2013, the claimant filed for Social Security benefits as the NH’s spouse. You requested a legal opinion regarding whether the claimant is the NH’s spouse for purposes of the claimant’s entitlement to benefits.
ANALYSIS2
A claimant is entitled to spousal benefits under Title II of the Act if, among other things, he or she is the spouse of an insured individual who is entitled to old-age or disability benefits.3 See 42 U.S.C. §§ 402(c), 416(a)(1); 20 C.F.R. § 404.330. The claimant bears the burden of proving that he or she is in a valid marital relationship with the insured and is therefore the insured’s spouse. See 20 C.F.R §§ 20 C.F.R. §§ 404.345, 404.704, 404.723, 404.725. In determining the claimant’s relationship as the insured’s spouse, the agency looks to the law of the state where the insured had a permanent home at the time the claimant applied for benefits. See 42 U.S.C.§ 416(h)(1)(A)(i). If the insured was not domiciled in any state, the agency applies the law of the District of Columbia. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345; POMS GN 00210.006(B)(2).a.
Here, because the NH resided in Canada at the time the claimant applied for benefits, we apply District of Columbia law to determine whether they were validly married. Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946). The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942). As pertinent here, the District of Columbia began recognizing as valid same-sex marriages entered into in other jurisdictions beginning on July 7, 2009. See Section 1287a of the Jury and Marriage Amendment Act of 2009, D.C. Code § 46-405.01 (“A marriage legally entered into in another jurisdiction between 2 persons of the same sex that is recognized as valid in that jurisdiction, that is not expressly prohibited . . . , and has not been deemed illegal . . . , shall be recognized as a marriage in the District.”). Accordingly, the recognition of same-sex marriages performed in other jurisdictions does not appear to violate a strong public policy of the District. We therefore consider whether the claimant’s and the NH’s marriage is valid under the law of British Columbia, Canada.
On May 1, 2003, the Court of Appeals for British Columbia, Canada held that the definition of marriage as between one man and one woman violated the Canadian Charter of Rights and Freedoms.4 Barbeau, et al. v. Attorney General of Canada, et al., 2003 BCCA 251, available at: http://www.courts.gov.bc.ca/jdb-txt/ca/03/02/2003bcca0251.htm. In so holding, the Court reformulated the definition of marriage as “the lawful union of two persons to the exclusion of all others.” Id. However, the Court suspended its decision to give the federal and provincial governments time to review and revise legislation to accord with this decision. Id. On July 8, 2003, the British Columbia Court of Appeals lifted the stay in implementing the new definition of marriage and held that the reformulated definition of marriage took effect immediately. Barbeau, et al. v. Attorney General of Canada, et al., 2003 BCCA 406, available at:
http://www.courts.gov.bc.ca/jdb-txt/ca/03/04/2003bcca0406.htm.
On January XX, 2006, the claimant and the NH entered into a same-sex marriage in British Columbia. Because same-sex marriages had been legal in British Columbia since July 8, 2003, the District of Columbia would recognize their marriage as valid at least since July 7, 2009, the effective date of the Jury and Marriage Amendment Act of 2009. See D.C. Code § 46-405.01. Accordingly, the marriage was valid at the time of the claimant’s application for purposes of determining the claimant’s entitlement to the spouse’s benefits on the record of the NH.
CONCLUSION
For the reasons stated above, it is our opinion that the claimant’s foreign same-sex marriage to the NH was valid under District of Columbia law. Therefore, you can find claimant to be the surviving spouse of the NH for purposes of determining his entitlement to spouse’s benefits.
C. PR 15-039 Validity of a Same-Sex Marriage Performed in Ontario, Canada Under District of Columbia Law—REPLY
Date: November 20, 2014
1. Syllabus
Because the number holder (NH) resided in Canada at the time the claimant applied for benefits, we apply District of Columbia law to determine whether they were validly married. Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. The claimant and the NH entered into a same-sex marriage in Ontario, Canada on September XX, 2003. Because same-sex marriages had been legal in Ontario since June 10, 2003, we conclude that the District of Columbia would recognize their marriage as valid. Accordingly, the claimant was validly married to the NH for purposes of determining the claimant’s entitlement to benefits as the widower of the NH.
2. Opinion
QUESTION PRESENTED
Whether W~, the claimant, and A~, the deceased number holder (the NH), who were married in Ontario, Canada on September XX, 2003, are considered to have been married for purposes of determining the claimant’s entitlement to benefits under Title II of the Social Security Act (the Act).
OPINION
Yes. The claimant qualifies as the NH’s surviving spouse (widower). Accordingly, if the claimant meets the other criteria for entitlement, the agency should find that he is entitled to Title II benefits on the NH’s record.
BACKGROUND
The claimant and the NH entered into a same-sex marriage on September XX, 2003, in Ontario, Canada. The claimant continues to reside in Canada. On September XX, 2013, the claimant filed for Social Security benefits as the NH’s widower. You requested a legal opinion regarding whether the claimant and the NH are considered to have been married for purposes of determining the claimant’s entitlement to benefits under Title II of the Act.
ANALYSIS 5
Generally, an individual is entitled to widow’s or widower’s benefits if he or she:
(1) is the insured’s widow or widower and the marital relationship lasted at least nine months before the insured died;
(2) files an application;
(3) is at least 60 years old;
(4) is not entitled to an old-age benefit that is equal to or larger than the insured person’s primary insurance amount; and
(5) is not currently married. Sections 202(e), 202(f) of the Act; 20 C.F.R. § 404.335. Similarly, upon the death of a person who died as a fully or currently insured individual under the Act, a lump-sum death payment may be paid to the widow or widower of the insured who was living in the same household at the time of death. Section 202(i) of the Act; 20 C.F.R. § 404.391.
Here, because the NH resided in Canada at the time the claimant applied for benefits, we apply District of Columbia law to determine whether they were validly married. Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946). The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942). As pertinent here, the District of Columbia began recognizing as valid same-sex marriages entered into in other jurisdictions beginning on July 7, 2009. See Section 1287a of the Jury and Marriage Amendment Act of 2009, D.C. Code § 46-405.01 (“A marriage legally entered into in another jurisdiction between 2 persons of the same sex that is recognized as valid in that jurisdiction, that is not expressly prohibited . . . , and has not been deemed illegal . . . , shall be recognized as a marriage in the District.”). Accordingly, the recognition of same-sex marriages performed in other jurisdictions does not appear to violate a strong public policy of the District. We therefore consider whether the claimant’s and the NH’s marriage is valid under the law of Ontario, Canada.
Same-sex marriages have been valid in Ontario, Canada since June 10, 2003, when the Court of Appeals for Ontario held that the common law definition of marriage as between one man and one woman violated the Canadian Charter of Rights and Freedoms. Halpern, et al. v. Attorney General of Canada, et al., (2003) 65 O.R. 3d 161 (Can. Ont. C.A.). Furthermore, on July 20, 2005, the Civil Marriage Act legalized same-sex marriage throughout Canada by defining marriage as “the lawful union of two persons to the exclusion of all others.” Civil Marriage Act, S.C. 2005, c. 3, § 2.
Here, the claimant and the NH entered into a same-sex marriage in Ontario, Canada on September XX, 2003. Because same-sex marriages had been legal in Ontario since June 10, 2003, we conclude that the District of Columbia would recognize their marriage as valid. Accordingly, the claimant was validly married to the NH for purposes of determining the claimant’s entitlement to benefits as the widower of the NH.
CONCLUSION
For the reasons stated above, it is our opinion that the claimant’s foreign same-sex marriage to the NH was valid under District of Columbia law. Therefore, the claimant can be considered the widower of the NH for purposes of determining his entitlement to benefits.
D. PR 14-166 N.~’s Entitlement to Spouse’s Benefits on the Account of Number Holder J.~, Involving the Validity of a Same-Sex Marriage Performed in Quebec, Canada Under District of Columbia Law
Date: September 8, 2014
1. Syllabus
The claimant and the number holder (NH) entered into a same-sex marriage in Quebec, Canada on July XX, 2008. Because same-sex marriages had been legal in Quebec since March 19, 2004 (and throughout Canada since July 20, 2005), the District of Columbia would recognize their marriage as valid.
2. Opinion
QUESTION PRESENTED
N~ (claimant) and J~, the number holder (NH), entered into a same-sex marriage on July XX, 2008, in Quebec, Canada. Does the claimant qualify as the NH’s spouse for purposes of determining his entitlement to spouse’s benefits?
ANSWER
Yes. The claimant qualifies as the NH’s spouse. Accordingly, if the claimant meets the other criteria for entitlement to spouse’s benefits, the agency should find that he is entitled to spouse’s benefits on the NH’s record.
BACKGROUND
The claimant and the NH entered into a same-sex marriage on July XX, 2008, in Quebec, Canada, where they continue to reside. On February XX, 2014, the claimant filed for Social Security benefits as the NH’s spouse. You requested a legal opinion regarding whether the claimant is the NH’s spouse for purposes of the claimant’s entitlement to benefits.
ANALYSIS
We note that our discussion of the law of Quebec, Canada is based in part on an opinion we received from the Library of Congress.
A claimant is entitled to spousal benefits under Title II of the Act if, among other things, he or she is the spouse of an insured individual who is entitled to old-age or disability benefits. To be eligible for spousal benefits, the claimant must also show that he or she:
(1) has been married to the insured individual for at least one year, shares a natural child with the insured, or is entitled to certain benefits in the month before the marriage;
(2) has filed an application for spousal benefits;
(3) has attained aged 62 or has in his or her care a child entitled to child’s benefits; and
(4) is either not entitled to old-age or disability benefits, or is entitled to such benefits based on a primary insurance amount which is less than one-half of the spouse’s primary insurance amount. See 42 U.S.C. § 402(b)(c); 20 C.F.R. § 404.330.
As we have not been asked to provide an opinion on whether Claimant meets these additional requirements, our opinion will focus on whether the claimant is the NH’s spouse.
See 42 U.S.C. §§ 402(c), 416(a)(1); 20 C.F.R. § 404.330. The claimant bears the burden of proving that he or she is in a valid marital relationship with the insured and is therefore the insured’s spouse. See 20 C.F.R §§ 20 C.F.R. §§ 404.345, 404.704, 404.723, 404.725. In determining the claimant’s relationship as the insured’s spouse, the agency looks to the law of the state where the insured had a permanent home at the time the claimant applied for benefits. See 42 U.S.C.§ 416(h)(1)(A)(i). If the insured was not domiciled in any state, the agency applies the law of the District of Columbia. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345; POMS GN 00210.006(B)(2).
Here, because the NH resided in Canada at the time the claimant applied for benefits, we apply District of Columbia law to determine whether they were validly married. Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946). The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942). As pertinent here, the District of Columbia began recognizing as valid same-sex marriages entered into in other jurisdictions beginning on July 7, 2009. See Section 1287a of the Jury and Marriage Amendment Act of 2009, D.C. Code § 46-405.01 (“A marriage legally entered into in another jurisdiction between 2 persons of the same sex that is recognized as valid in that jurisdiction, that is not expressly prohibited . . . , and has not been deemed illegal . . . , shall be recognized as a marriage in the District.”). Accordingly, the recognition of same-sex marriages performed in other jurisdictions does not appear to violate a strong public policy of the District. We therefore consider whether the claimant’s and the NH’s marriage is valid under the law of Quebec, Canada.
Same-sex marriages have been legal in Quebec since March 19, 2004.See Catholic Civil Rights League v. Hendricks, [2004] R.J.Q. 851, 238 D.L.R. (4th) 577, 2004 CanLII20538 (Q.C.C.A.), http://www.canlii.org/en/qc/qcca/doc/2004/2004canlii20538/2004canlii20538.html visited Sept. 3, 2014). Indeed, they have been legal in all Canadian provinces since July 20, 2005, the effective date of the Civil Marriage Act, a federal statute. See Civil Marriage Act, S.C. 2005, c. 33, http://laws-lois.justice.gc.ca/eng/acts/c-31.5/page-1.html visited Sept. 3, 2014). Section 2 of the Civil Marriage Act states that “[m]arriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.” Id., c. 33, § 2. For “greater certainty,” the Act goes on to state that “a marriage is not void or voidable by reason only that the spouses are of the same sex.” Id., c. 3, § 4.
Here, the claimant and the NH entered into a same-sex marriage in Quebec, Canada on July XX, 2008. Because same-sex marriages had been legal in Quebec since March 19, 2004 (and throughout Canada since July 20, 2005), we conclude that the District of Columbia would recognize their marriage as valid. Accordingly, the claimant was validly married to the NH for purposes of determining the claimant’s entitlement to spouse’s benefits.
CONCLUSION
For the reasons stated above, it is our opinion that the claimant’s foreign same-sex marriage to the NH was valid under District of Columbia law. Therefore, you can find claimant to be the surviving spouse of the NH for purposes of determining his entitlement to spouse’s benefits.
E. PR 14-119 R~ – Entitlement to Lump Sum Death Payment on the Account of Number Holder D~ – Validity of Same-Sex Marriage Performed in a British Columbia, Canada, Under District of Columbia Law
Date: June 17, 2014
1. Syllabus
The claimant and the number holder (NH) were married in V~, British Columbia, Canada and living in O~, Ontario, Canada on the date of the NH’s death. The claimant’s foreign same sex marriage to the NH was valid under District of Columbia law.
2. Opinion
QUESTION PRESENTED
Is R~ (claimant) the surviving spouse of D~, the number holder (NH), where the couple entered into a same-sex marriage in British Columbia, Canada?
OPINION
Yes. The claimant is the surviving spouse of the NH. Accordingly, if the claimant meets the other criteria for entitlement to the Lump Sum Death Payment (LSDP), 6 the agency could find that he is entitled to that payment on the NH’s record as the NH’s surviving spouse.
BACKGROUND 7
The claimant and the NH were married on May XX, 2004, in V~, British Columbia, Canada. No actions were taken to terminate the marriage prior to the NH’s death. Both the claimant and the NH were living in O~, Ontario, Canada on July XX, 2013, the date of the NH’s death.
In August 2013, the claimant applied for the LSDP on the NH’s account as the NH’s surviving spouse. You requested a legal opinion as to whether the claimant is the NH’s surviving spouse.
ANALYSIS
Under section 202(i) of the Social Security Act (the Act), to be entitled to the LSDP on an insured NH’s record, a claimant must show that he or she is the NH’s widow or widower and resided in the same household with the deceased at the time of death. See also 20 C.F.R. § 404.391. Widow and widower are defined as the surviving wife and husband, respectively. See section 216(c) & (g) of the Act; see also 20 C.F.R. §§ 404.345, 404.346.
At the time of the NH’s death, the parties were living in Canada, a foreign jurisdiction. Under these circumstances, we decide surviving spouse status by applying District of Columbia law to determine whether the foreign same-sex marriage was valid at the time of the NH’s death. See section 216(h)(1)(A)(i) of the Act; 20 C.F.R. § 404.345, POMS GN 00210.006(B)(2). Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946). The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942)..
In the District of Columbia, marriage historically was defined as the voluntary union of one man and one woman. See Dean v. District of Columbia, 653 A.2d 307, 315 (D.C. 1995) (“Our task, however, is to determine what the legislature intended ‘marriage’ to mean when the marriage statute was enacted, codified, or amended. Given the statutory language used, buttressed by the usual definition of ‘marriage,’ we cannot conclude that any legislature for the District of Columbia that has addressed the marriage statute has ever intended to authorize same-sex unions.”). Despite this historic definition, the District of Columbia began recognizing same-sex marriages legally entered into in other jurisdictions beginning on July 7, 2009. See Section 1287a of the Jury and Marriage Amendment Act of 2009, D.C. Code § 46–405.01 (“A marriage legally entered into in another jurisdiction between 2 persons of the same sex that is recognized as valid in that jurisdiction, that is not expressly prohibited . . . , and has not been deemed illegal . . . , shall be recognized as a marriage in the District.”). To determine whether the District of Columbia would recognize the claimant and the NH’s marriage as valid, we must determine whether the marriage was valid in British Columbia, Canada at the time it was entered into.
On May 1, 2003, the Court of Appeals for British Columbia, Canada held that the definition of marriage as between one man and one woman violated the Canadian Charter of Rights and Freedoms. 8 Barbeau, et al. v. Attorney General of Canada, et al., 2003 BCCA 251, available at: http://www.courts.gov.bc.ca/jdb-txt/ca/03/02/2003bcca0251.htm
In so holding, the Court reformulated the definition of marriage as “the lawful union of two persons to the exclusion of all others.” Id. However, the Court suspended its decision to give the federal and provincial governments time to review and revise legislation to accord with this decision. Id. On
July 8, 2003, the British Columbia Court of Appeals lifted the stay in implementing the new definition of marriage and held that the reformulated definition of marriage took effect immediately. Barbeau, et al. v. Attorney General of Canada, et al., 2003 BCCA 406, available at:
http://www.courts.gov.bc.ca/jdb-txt/ca/03/04/2003bcca0406.htm
On May XX, 2004, the claimant and the NH entered into a same-sex marriage in British Columbia. Because same-sex marriages had been legal in British Columbia since July 8, 2003, almost a year before the claimant and the NH got married, the District of Columbia would recognize their marriage as valid at least since July 7, 2009, the effective date of the Jury and Marriage Amendment Act of 2009. See D.C. Code § 46405.01. Accordingly, the marriage was valid at the time of the NH’s death for purposes of determining the claimant’s entitlement to the LSDP as the NH’s surviving spouse.
CONCLUSION
For the reasons stated above, it is our opinion that the claimant’s foreign same-sex marriage to the NH was valid under District of Columbia law. Therefore, you can find claimant to be the surviving spouse of the NH for purposes of the LSDP.
Nora Koch
Acting Regional Chief Counsel, Region III
By: _________
Elizabeth A. Corritore
Assistant Regional Counsel
Footnotes:
The Wills, Estates and Succession Act was intended to provide greater certainty for individuals who put their last wishes into writing and simplify the process for those responsible for distributing an estate, but did not meaningfully change the definition of “spouse.” British Columbia, Ministry of Justice, available at: http://www.ag.gov.bc.ca/legislation/wills-estates-succession-act/index.htm; Compare Estate Administration Act, S.B.C. 1996, c. 122, pt. 1 available at:
http://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-122/104764/rsbc-1996-c-122.html#Part_1_General_498, and Wills, Estates and Succession Act, S.B.C. 2009, c. 13, pt. 2, available at: http://www.bclaws.ca/civix/document/id/complete/statreg/09013_01#section2.
We note that our discussion of the law of British Columbia, Canada is based in part on an opinion we received from the Library of Congress.
To be eligible for spousal benefits, the claimant must also show that he or she:
(1) has been married to the insured individual for at least one year, shares a natural child with the insured, or is entitled to certain benefits in the month before the marriage;
(2) has filed an application for spousal benefits;
(3) has attained aged 62 or has in his or her care a child entitled to child’s benefits; and
(4) is either not entitled to old-age or disability benefits, or is entitled to such benefits based on a primary insurance amount which is less than one-half of the spouse’s primary insurance amount. See 42 U.S.C. § 402(b)(c); 20 C.F.R. § 404.330.
As we have not been asked to provide an opinion on whether Claimant meets these additional requirements, our opinion will focus on whether the claimant is the NH’s spouse.
The Canadian Charter of Rights and Freedoms is part of the Canadian Constitution and sets out the rights and freedoms of all Canadians. See http://www.parl.gc.ca/About/Parliament/Education/OurCountryOurParliament/html_booklet/canadian-charter-rights-and-freedoms-e.html.
We note that our discussion of the law of Ontario, Canada is based in part on an opinion we received from the Library of Congress.
If a person is fully or currently insured when he or she dies, a LSDP of $255 may be paid to the widow or widower of the deceased if the widow or widower applies for the payment within two years of the NH’s death, and if he or she was living in the same household with the NH at the time of his or her death. 20 C.F.R. §§ 404.390, 404.391 (2013). According to your Report of Contact, the claimant met the Living in Same Household requirement at the time of the NH’s death. In addition, the claimant applied for the LSDP in August 2013, well within the two year time period.
This legal opinion is based upon evidence provided by the New York Center for Programs Support, including a copy of a British Columbia, Canada Certificate of Marriage, a Report of Contact documenting the case, and a Master Beneficiary Query showing the NH’s address in O~, Ontario, Canada.
The Canadian Charter of Rights and Freedoms is part of the Canadian Constitution and sets out the rights and freedoms of all Canadians. See http://www.parl.gc.ca/About/Parliament/Education/OurCountryOurParliament/html_booklet/canadian-charter-rights-and-freedoms-e.html