The claimant and number holder (NH) married in Ontario, Canada in August 2007. Same-sex marriages have been valid in Ontario as of June 10, 2003. The NH died in December 2014 while domiciled in North Carolina. The claimant filed for survivor’s benefits on the NH’s earnings record. Regarding marriages in foreign countries, North Carolina courts generally look to the law of the country where the marriage occurred to determine the validity of the marriage. In this case, the claimant provided a marriage certificate issued in Ontario, Canada, and on its face and the other information indicates the marriage certificate was issued in accordance with Canadian law. Since the marriage between the claimant and NH was valid and North Carolina recognizes valid marriages from foreign jurisdictions and recognizes same-sex marriages, we determine the claimant was validly married to the NH for purposes of determining entitlement to Title II benefits on the NH’s record.

QUESTION

You asked whether Claimant and the number holder (NH), who entered into a same-sex marriage in Canada, were validly married under North Carolina law for purposes of determining Claimant's entitlement to Title II benefits as NH's widower.

OPINION

Claimant was validly married to NH under North Carolina law for purposes of determining Claimant's entitlement to Title II benefits as NH's widower.

BACKGROUND

According to the information provided, D1~ (Claimant) married D2~ (NH) on August XX, 2007, in Ontario, Canada. NH's death certificate indicates he was a resident of North Carolina when he died on December XX, 2014. NH's death certificate annotates his marital status as married and identifies Claimant as the informant. Claimant's Numident indicates he is male, and NH's death certificate and Numident indicates he was male. On January XX, 2015, Claimant applied for widower's insurance benefits (WIB) and the lump-sum death payment on NH's earnings record. Claimant reported in his application that he and NH married in Canada on August XX, 2007.

DISCUSSION

A claimant may be eligible for WIB if the claimant is the widower of an individual who died fully insured. See Social Security Act (Act) § 202(f)(1); 20 C.F.R. § 404.335(a) (2015).*^[1] A claimant may be eligible for the lump-sum death payment if the claimant is the widower of an individual who died fully or currently insured. See Act § 202(i); 20 C.F.R. §§ 404.390, 404.391. A claimant may qualify as the widower of an insured individual if the courts of the State in which the insured individual was domiciled at the time of death would find the claimant and insured individual were validly married when the insured individual died. See Act § 216(h)(1)(A)(i); 20 C.F.R. §§ 404.335(a), 404.345; Program Operations Manual System (POMS) GN 00305.001(A)(2)(a); see also POMS GN 00210.006(B)(2)(a) (stating Regional Chief Counsel opinions regarding validity of foreign same-sex marriages look to laws of the State of the number holder's domicile and must address whether marriage would be recognized as valid by the courts of the State of the number holder's domicile). NH's death certificate indicates he was a resident of North Carolina when he died. Therefore, we look to North Carolina law to determine if Claimant and NH were validly married.

Under North Carolina law, when the evidence establishes that a marriage ceremony occurred, courts presume the ceremony was performed legally and resulted in a valid marriage. See Kearney v. Thomas, 33 S.E.2d 871, 876-77 (N.C. 1945); see also Overton v. Overton, 132 S.E.2d 349, 352 (N.C. 1963) ("If a ceremonial marriage is in fact established by evidence or admission it is presumed to be regular and valid"). The presentation of a marriage license generally is sufficient to invoke the presumption that the marriage is valid. See Hanner v. Hanner, 554 S.E.2d 673, 675 (N.C. Ct. App. 2001). North Carolina courts also presume "that a marriage entered into in another State is valid under the laws of that State in the absence of contrary evidence." Parker v. Parker, 265 S.E. 2d 237, 239 (N.C. 1980) (quoting Overton, 132 S.E.2d at 352) (internal quotation marks omitted); see also Fungaroli v. Fungaroli, 280 S.E.2d 787, 793 (N.C. Ct. App. 1981) ("The general conflicts rule is . . . that a marriage valid where contracted is valid everywhere"); POMS GN 00305.005(B)(1) ("The law of the place where a marriage occurred ordinarily determines the validity of a marriage. If the marriage is valid in that jurisdiction, it is usually held valid in other places.").

Regarding marriages in foreign countries, North Carolina courts generally look to the law of the country where the marriage occurred to determine the validity of the marriage. See State v. Cutshall, 15 S.E. 261, 261 (N.C. 1892) ("As a rule, the validity of marriages contracted in any foreign country must be determined by the courts of another nation with reference to the law of the country wherein they exchange the mutual consent") (internal quotation marks omitted). Evidence of a marriage ceremony in a foreign country creates a presumption that the ceremony was performed in accordance with the law of the foreign country. See Loyd v. Loyd, 18 S.E. 200, 201 (N.C. 1893). Notably, at least one North Carolina court has held that evidence of a Canadian marriage is sufficient to invoke the presumption that the marriage was legal. See Mayo v. Mayo, 326 S.E.2d 283, 286 (N.C. Ct. App. 1985).

North Carolina previously denied recognition to same-sex marriages due to statutory and State Constitutional provisions, but began recognizing same-sex marriages on October 10, 2014, before NH died. See POMS GN 00210.003(A)(1). Additionally, on June 26, 2015, the U.S. Supreme Court held that same-sex couples may exercise the fundamental right to marry under the United States Constitution. See Obergefell v. Hodges, 576 U.S. ---, 135 S. Ct. 2584, 2604-05 (2015). The Court held State laws invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Id., 135 S. Ct. at 2605. The Court also reasoned that having required all States to marry same-sex couples, "[i]t follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." Id. at 2607-08.

In this case, Claimant provided a Certificate of Marriage issued in Ontario, Canada on August XX, 2007. Ontario, Canada recognized same-sex marriage as of June 10, 2003, and Canada recognized the validity of same-sex marriage nationwide as of July 20, 2005. See The Law Library of Congress, Report for U.S. Social Security Administration LL File No. 2014-010685, Canada: Legal Recognition of Marriage (2014). The marriage certificate on its face and the other information indicates the marriage certificate was issued in accordance with Canadian law. Although Obergefell did not specifically address whether States must recognize same-sex marriages performed in other countries, North Carolina law indicates North Carolina courts would recognize valid foreign marriages, particularly a valid Canadian marriage. See Mayo, 326 S.E.2d at 286; Parker, 265 S.E. 2d at 239; Loyd, 18 S.E. at 201. Thus, because the marriage between Claimant and NH was valid and North Carolina recognizes valid marriages from foreign jurisdictions and recognizes same-sex marriages, a North Carolina court would have recognized Claimant and NH as validly married under North Carolina when NH died.

CONCLUSION

Claimant was validly married to NH under North Carolina law for purposes of determining Claimant's entitlement to Title II benefits on NH's earnings record.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: __________________

Brian C. Huberty

Assistant Regional Counsel

The claimant and number holder (NH) married in Ontario, Canada in April 2007. Canada has recognized same-sex marriages as of July 20, 2005. The NH died June 2014 while domiciled in Florida and the claimant filed for the lump-sum death payment (LSDP) and widower’s benefits on the NH’s record in January 2015. Since the NH died in Florida, we look to Florida law to determine if the claimant and NH were validly married.

Florida has a history of recognizing valid foreign marriages and generally approves the act of marriage, regardless of where it occurs and presumes a marriage is valid. The claimant provided a Canadian marriage certificate and because the certificate and other information support the conclusion the marriage was valid in Canada, Florida would presume the marriage is valid under Canadian law. Therefore, we conclude the claimant was validly married to the NH under Florida law for purposes of determining entitlement to Title II benefits on the NH’s earnings record.

QUESTION

You asked whether the number holder (NH) and Claimant, who entered into a same-sex marriage in Canada, were validly married under Florida law for purposes of determining Claimant’s entitlement to Title II benefits as NH’s widower.

OPINION

Claimant was validly married to NH under Florida law for purposes of determining Claimant’s entitlement to Title II benefits as NH’s widower.

BACKGROUND

According to the information provided, J~ (Claimant) married R~ (NH) in N~ F~, Ontario, Canada on April XX, 2007. Claimant is and NH was male. NH’s death certificate indicates he died on June XX, 2014, while domiciled in P~ B~, Florida. On January XX, 2015, Claimant applied for WIB and all other insurance benefits for which he was eligible under Title II of the Social Security Act (Act) on NH’s earnings record.

DISCUSSION

A claimant may be eligible for WIB if the claimant is the widower of an individual who died fully insured. See Act § 202(f)(1); 20 C.F.R. § 404.335(a) (2015).^[2] A claimant may be eligible for the lump-sum death payment if the claimant is the widower of an individual who died a fully or currently insured individual. See Act § 202(i); 20 C.F.R. §§ 404.390, 404.391. A claimant may qualify as the widower of an insured individual if the courts of the State in which the insured individual was domiciled at the time of death would find the claimant and insured individual were validly married when the insured individual died. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345; Program Operations Manual System (POMS) GN 00305.001(A)(2)(a); see also POMS GN 00210.006(B) (stating Regional Chief Counsel opinions regarding validity of foreign same-sex marriages look to laws of the State of the number holder’s domicile and must address whether marriage would be recognized as valid by the courts of the State of the number holder’s domicile). NH’s death certificate indicates he was a resident of Florida when he died. Therefore, we look to Florida law to determine if Claimant and NH were validly married.

Florida generally approves of the act of marriage, regardless of where it occurs, and presumes a marriage is valid. See Johnson v. Lincoln Square Properties, Inc., 571 So. 2d 541, 542 (Fla. Dist. Ct. App. 1990); Guelman v. De Guelman, 453 So. 2d 1159, 1160 (Fla. Dist. Ct. App. 1984). In addition, “[i]t is presumed that an official performing a marriage service, whether in a foreign or domestic jurisdiction would not have performed the service if there was any known impediment to the marriage.” Guelman, 453 So. 2d at 1160. Furthermore, “all presumptions necessary to make a marriage valid, including the capacity to contract, attach upon proof of a ceremonial marriage and cohabitation by the parties under the belief that they were lawfully married.” Anderson v. Anderson, 577 So. 2d 658, 660 (Fla. Dist. Ct. App. 1991).

Florida courts generally determine the validity of a marriage based on the laws of the place where the purported marriage occurred. See Johnson, 571 So. 2d at 542; see also POMS GN 00305.005(B)(1) (“The law of the place where a marriage occurred ordinarily determines the validity of a marriage. If the marriage is valid in that jurisdiction, it is usually held valid in other places.”). “The law in Florida on this point is consistent with the general rule recognized in other jurisdictions that the validity of a marriage is to be determined by the law of the jurisdiction where the marriage was entered into.” Anderson, 577 So. 2d at 660.

Florida previously denied recognition to same-sex marriages due to statutory and State Constitutional provisions, but began recognizing same-sex marriages on January 5, 2015. See POMS GN 00210.003(A); POMS PR 05825.011. Additionally, on June 26, 2015, the U.S. Supreme Court held that same-sex couples may exercise the fundamental right to marry under the United States Constitution. See Obergefell v. Hodges, 576 U.S. —, 135 S. Ct. 2584, 2604-05 (2015). The Court held State laws invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Id. 135 S. Ct. at 2605. The Court also reasoned that having required all States to marry same-sex couples, “[i]t follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” Id. at 2607-08.

In this case, Claimant provided a Canadian marriage certificate dated April XX, 2007. As of July 20, 2005, Canada recognized the validity of same-sex marriages. See The Law Library of Congress, Report for U.S. Soc. Sec. Admin. LL File No. 2014-010685, Canada: Legal Recognition of Marriage (2014). Because the certificate and other information support the conclusion the marriage was valid in Canada, Florida would presume the marriage is valid under Canadian law. See Anderson, 577 So. 2d at 660; Guelman, 453 So. 2d at 1160. Although Obergefell did not specifically address whether States must recognize same-sex marriages performed in other countries, Florida has a history of recognizing valid foreign marriages. See, e.g., Guelman, 453 So. 2d at 1160 (recognizing Bolivian marriage).

Obergefell also did not specifically address whether States must recognize same-sex marriages where one of the parties died before the Court rendered its decision. However, on September 10, 2015, the Social Security Administration (SSA) issued Emergency Message 15029, “Obergefell Supreme Court Decision–When to Recognize Same-sex Marriages in Title II Survivor and Lump-sum Death Payment (LSDP) Claims - One-Time-Only Instructions” (EM). The EM applies Obergefell and provides that, if a marriage was valid where celebrated in a State or U.S. territory, then SSA will recognize the marriage as valid as of the date of the marriage regardless of whether the number holder died domiciled in a State that recognized same-sex marriage when the number holder died. The EM directs this conclusion when determining whether a claimant is a same-sex spouse for Title II benefit purposes, that is, for determining whether under section 216(h)(1)(A)(i) of the Act and 20 C.F.R. § 404.345 the courts of the State where the number holder died (Florida in this case) would find the claimant and the number holder were married when the number holder died. Consequently, if the marriage between Claimant and NH had occurred in another State in the United States and the marriage was valid in that State, we would conclude that Florida courts would consider the marriage to be valid even if NH had died before Florida began recognizing same-sex marriages.

The EM does not specifically address marriages performed outside the United States and its territories. Nevertheless, Florida courts generally determine the validity of a marriage based on the laws of the place where the purported marriage occurred, regardless of whether the marriage was performed in another State or in another country. See, e.g., Guelman, 453 So. 2d at 1160 (sustaining trial court’s interpretation of foreign law and presuming Bolivian marriage valid). Because, under the EM, we would conclude Florida courts would recognize a marriage like that between Claimant and NH if the marriage was validly performed in another State, we conclude a Florida court would find Claimant and NH are married in this case because Florida does not treat marriages performed in other States and marriages performed in other countries differently in ways that would result in a different outcome here.

However, we caution that neither the Supreme Court of Florida nor any of the Florida District Courts of Appeal have spoken on these issues and this area of law in Florida is in significant flux. Consequently, our conclusions may change as Florida law evolves on these issues.

CONCLUSION

Claimant was validly married to NH under Florida law for purposes of determining Claimant’s entitlement to Title II benefits on NH’s earnings record.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: __________________

Laura Verduci

Assistant Regional Counsel

The claimant and number holder (NH) married in February 2004 in Ontario, Canada and remained married until the NH’s death January 2011. Same-sex marriages have been valid in Ontario, Canada since June 10, 2003. Since the NH died while domiciled in New Jersey, we look to New Jersey state law to determine if the claimant can collect widower’s benefits and the lump-sum death payment (LSDP) on the NH’s earnings record.

New Jersey recognizes same-sex marriages from other states and foreign jurisdictions as civil unions from February 19, 2007 through October 20, 2013, and under the intestacy law of the state, a claimant could inherit a spouse’s share of the NH’s personal property if the NH died intestate. Since New Jersey civil unions confer intestacy rights, SSA recognizes the couple’s civil union as a marital relationship for the purpose of satisfying the marital relationship requirement for widower and LSDP benefits on the NH’s record.

Issue

Whether New Jersey would recognize the same-sex Canadian marriage of H~ (Claimant) and P~, the number holder (NH), for the purpose of determining whether Claimant is entitled to widower’s benefits and the lump-sum death payment (LSDP) on the NH’s record.

Short Answer

New Jersey would recognize the 2004 Canadian same-sex marriage between the Claimant and the NH as a civil union as of February 19, 2007. Under New Jersey intestacy law, a civil union partner can inherit a spouse’s share of a number holder’s personal property, and, therefore, SSA treats the civil union as a marital relationship for determining entitlement to widower’s benefits and the LSDP. Thus, the Claimant is entitled to receive widower’s benefits and the LSDP on the NH’s record, assuming that the Claimant has satisfied the other statutory and regulatory requirements for such benefits.

Background^[3]

Claimant and the NH were lawfully married on February XX, 2004 in Ontario, Canada, and remained married until the date of the NH’s death. The NH died on January XX, 2011, and was a permanent resident of the State of New Jersey on the date of his death.

Claimant applied for widower’s benefits and the LSDP on the NH’s record on December XX, 2012. On January XX, 2013, the agency denied the claim because it did not satisfy the marriage requirements of the Social Security Act (Act). Claimant filed a request for reconsideration on March XX, 2013, which was denied on June XX, 2013.

On August XX, 2013, Claimant requested a hearing before an Administrative Law Judge (ALJ).

Discussion

Social Security Act and Regulations

To receive benefits as the widower of an insured wage earner, a claimant must, among other requirements, have been in a valid marital relationship for at least 9 months immediately prior to the insured’s death.^[4] 42 U.S.C. §§ 402(f) and 416(g) (defining “widower”), 416(h)(1)(A); 20 C.F.R. §§ 404.335(a)(1); 404.344-45. A widower who was living in the same household as the deceased is entitled to the LSDP if the claimant and insured were in a marital relationship, as defined by SSA. 42 U.S.C. § 402(i) and 416(g); 20 C.F.R. §§ 404.345, 404.391. SSA looks to the laws of the state where the insured had a permanent home at the time of his death to determine whether the claimant and insured were validly married. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345.

The Program Operations Manual System (POMS) provides that non-marital legal relationships, such as a civil union or domestic partnership, can be treated as marital relationships for the purpose of determining entitlement to benefits. POMS GN 00210.004.A; see GN 00210.600 (regarding the LSDP). A claimant’s non-marital legal relationship will satisfy the relationship requirement for entitlement to benefits if: (a) the relationship was valid in the place it was established, and (b) it qualifies as a marital relationship using the law of the state of the number holder’s domicile. POMS GN 00210.004.B. A non-marital legal relationship will qualify as a marital relationship if, under the intestacy law of the state of the number holder’s domicile at the time of the number holder’s death, a claimant could inherit a spouse’s share of the number holder’s personal property if the number holder died without leaving a will. POMS GN 00210.004.A, B.2.

The POMS provides that from February 19, 2007 through October 20, 2013, New Jersey recognized same-sex marriages from other states as civil unions. POMS GN 00210.004.D New Jersey; GN 00210.003.A, B.5 New Jersey.

Canadian Law Regarding Same-Sex Marriage

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.), available at:

http://www.ontariocourts.on.ca/decisions/2003/june/halpernC39172.htm

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.” Civil Marriage Act, S.C. 2005, c. 33 (Can.), available at http://laws-lois.justice.gc.ca/eng/acts/c-31.5/page-1.html. A same-sex marriage performed in Ontario, Canada subsequent to June 10, 2003 is therefore a valid marriage in that jurisdiction. Finally, there appears to be no Canadian residency requirement to be married in Canada. On June 26, 2013, the Canadian Parliament amended the Civil Marriage Act, specifically recognizing civil marriages of non-resident persons:

A marriage that is performed in Canada and that would be valid in Canada if the spouses were domiciled in Canada is valid for the purposes of Canadian law even though either or both of the spouses do not, at the time of the marriage, have capacity to enter into it under the law of their respective state of domicile.

Civil Marriage Act, S.C. 2013, c. 30, pt. 1, § 5.

New Jersey State Law Regarding Same-Sex Marriage

On December 21, 2006, the New Jersey Legislature enacted the Civil Union Act, which created civil unions for same-sex couples, effective February 19, 2007. See N.J. Stat. Ann. § 37:1-28, et. seq. On February 16, 2007, the New Jersey Attorney General issued an opinion stating that same-sex relationships validly established under the laws of other States and foreign nations would be recognized, beginning on February 19, 2007, either as a valid civil union or domestic partnership, but not as a same-sex marriage. Recognition in New Jersey of Same-Sex Marriages, Civil Unions, Domestic Partnerships and Other Government-Sanctioned, Same-Sex Relationships Established Pursuant to the Laws of Other States and Foreign Nations, N.J. Att’y Gen. Op. 3-2007 (Feb. 16, 2007), available at http://www.nj.gov/oag/newsreleases07/ag-formal-opinion-2.16.07.pdf (Formal Opinion 3-2007). New Jersey courts held that Formal Opinion 3-2007 was entitled to judicial deference. See Quarto v. Adams, 929 A.2d 1111, 1117 (N.J. Super. Ct. App. Div. 2007).

On June 26, 2013, the U. S. Supreme Court struck down Section 3 of the federal Defense of Marriage Act as unconstitutional and held that the Federal Government was required to provide the same rights and responsibilities to same-sex couples who were married under state law as to married couples of the opposite sex. United States v. Windsor, 570 U.S. 12 (2013). On September 27, 2013, the New Jersey courts found that civil union partners were denied equal access to federal benefits, and held that New Jersey must extend the right to civil marriage to same-sex couples. Garden State Equality v. Dow, 82 A.3d 336, 369 (N.J. Sup. Ct., 2013), stay denied 79 A.3d 479, certification granted 75 A.3d. 1157, stay denied 79 A.3d. 1036. An order accompanying the Garden State decision directed state officials to allow same-sex couples who qualified for civil marriage to marry in New Jersey beginning on October 21, 2013. See Id. As of the date of this Memorandum, no bill has been enacted into law in New Jersey regarding the retroactive recognition of same-sex marriages established under the laws of other jurisdictions.

New Jersey State Law Regarding Intestacy

Pursuant to the New Jersey Civil Union Act, the laws relating to intestate succession for legally-married couples “shall apply in like manner to civil union couples.” N.J. Stat. Ann. § 37:1-32 (West 2015). Under New Jersey intestacy law, a surviving spouse will inherit a spouse’s share of a decedent’s personal property if the decedent died without leaving a will. See N.J. Stat. Ann. § 3B:5-3 (West 2015). Thus, under New Jersey law, a civil union partner could inherit a spouse’s share of a decedent’s personal property if the decedent died intestate. N.J. Stat. Ann §§ 37:1-32; 3B:5-3; see POMS GN 00210.004.D. (stating that New Jersey law provides spousal inheritance rights to civil union partners).

Analysis

The Claimant and NH entered into a valid same-sex marriage in Ontario, Canada on February XX, 2004, and remained married until the NH’s death on January XX, 2011. The NH was domiciled in the State of New Jersey on the date of his death, and thus, SSA will look to New Jersey law to determine whether the Claimant can collect widower’s benefits and the LSDP on the NH’s account. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345.

From February 19, 2007 through October 20, 2013, New Jersey recognized same-sex marriages from other states as civil unions. POMS GN 00210.004.D New Jersey; GN 00210.003.A, B.5 New Jersey. As discussed above, the New Jersey Attorney General’s opinion provided that New Jersey would recognize same-sex marriages from foreign nations as civil unions, as of February 19, 2007. Formal Opinion 3-2007. Thus, New Jersey would have recognized the Claimant’s Canadian marriage as a civil union.

SSA recognizes a non-marital legal relationship, such as a civil union, as a marital relationship for the purpose of determining eligibility for benefits if, under the intestacy law of the state of the NH’s domicile at the time of the NH’s death, a claimant could inherit a spouse’s share of the NH’s personal property if the NH died intestate. POMS GN 00210.004.A, B. Under New Jersey law, a partner in a civil union could inherit a spouse’s share of a decedent’s personal property if the decedent died intestate, and thus, the civil union is considered a marital relationship for the purpose of determining whether the Claimant is eligible for widower’s benefits and the LSDP. N.J. Stat. Ann §§ 37:1-32; 3B:5-3; see POMS GN 00210.004.D (stating that New Jersey law provides spousal inheritance rights to civil union partners). The Claimant and NH were in a relationship New Jersey recognized as a valid civil union for over 9 months prior to the NH’s death, and thus, assuming that the claimant has satisfied the other statutory and regulatory requirements for such benefits, he is entitled to receive widower’s benefits and the LSDP on the NH’s account.

Conclusion

New Jersey recognized Claimant’s Canadian marriage to the NH as a valid civil union as of February 19, 2007. Because New Jersey civil unions confer intestacy rights, SSA recognizes a New Jersey civil union as a marital relationship for the purpose of satisfying the marital relationship requirement for widower’s benefits and the LSDP. Thus, the Claimant is entitled to widower’s benefits and the LSDP on the NH’s record, assuming that the Claimant has satisfied the other statutory and regulatory requirements for such benefits.

The number holder (NH) and claimant married in December 2007 in T~, Ontario, Canada and currently reside in Colorado. The claimant filed an application for spouse’s benefits on the NH’s record in December 2014. Same-sex marriages have been valid in Ontario, Canada since June 10, 2003. Colorado law provides that marriages contracted outside of the state “that were valid at the time of the contract . . . are valid in this state.” This means Colorado will recognize a same-sex marriage celebrated in Canada if the marriage was valid under Canadian law. We determined the NH and claimant’s marriage was valid under Canadian law; therefore, the claimant is entitled to spouse’s benefits under the Act.

Issue

You asked us to review whether a same sex marriage celebrated in Canada is valid in the State of Colorado for the purpose of determining spousal benefits.

Short Answer

Yes. Colorado would recognize the same-sex marriage performed in Canada because the marriage is valid under Canadian law.

Factual Background

According to the information you provided, P~ and J~ were married in December 2007 in T~, Ontario, Canada. See Reports of Contact, Marriage Certificate. At the time of their marriage in 2007, P~ and J~ were residing in B~, Colorado, and continue to reside there now. See Reports of Contact. P~ filed an application for spouse’s benefits on the record of J~ in December 2014. See Reports of Contact.

Discussion

Under the Social Security Act (Act), a claimant is entitled to benefits as the wife of an insured person who is entitled to old-age or disability benefits. See 20 C.F.R. § 404.330; 42 U.S.C. § 402(b); 42 U.S.C. § 416(h)(1)(A)(i). To be entitled to benefits under the Act, the claimant must show, among other things, that she is the insured’s wife. See id.; 20 C.F.R. § 404.345.

In order to determine the claimant’s status as a wife, we look to the laws of the State where the insured had a permanent home when the claimant applied for benefits. 20 C.F.R. § 404.345.

The Act provides that “[a]n applicant is the . . . wife . . . of a fully or currently insured individual for purposes of this subchapter if the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application.” 42 U.S.C. § 404.416(h)(1)(A)(i).

J~ was domiciled in Colorado at the time the application was filed. Thus, we must determine if, under Colorado law, the marriage was valid at the time P~ filed an application for spouse’s benefits. More specifically, we address whether the marriage (1) was valid in Canada where celebrated; and (2) is recognized as valid in Colorado. See POMS GN 00210.006(B)(2)(a).

I. Validity of Same-Sex Marriage Under Canadian Law

Same-sex marriages have been valid in Ontario, Canada since June 10, 2003, following a Court of Appeals decision holding that the common-law definition of marriage as between one man and one woman violated the Canadian Charter of Rights and Freedoms. See POMS PR 05825.008 (citing 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.” POMS PR 05825.008 (citing Civil Marriage Act, S.C. 2005 c.3, § 2).

The Civil Marriage Act does not have a Canadian residency requirement for a valid marriage, specifically recognizing the marriage of non-residents as “valid for the purposes of Canadian law even though either or both of the spouses do not, at the time of the marriage, have capacity to enter into it under the law of their respective state of domicile.” POMS PR 05825.008 (citing Civil Marriage Act § 5(1)).

II. Validity of Same-Sex Marriage Under Colorado Law

Under Colorado’s Uniform Marriage Act, marriage was valid in the state only if it was between one man and one woman. See Colo. Rev. Stat. § 14-2-104(1)(b) (West 2014). Further, although Colorado generally recognized valid marriages from outside of the state, the statute specifically excluded same-sex marriages. See id. at § 14-2-104(2) (referencing Colo. Rev. Stat. § 14-2-112).

In July 2014, same-sex couples challenged Colorado’s marriage laws in federal court, alleging that they were unconstitutional under the United States Constitution. See Burns v. Hickenlooper, No. 14-cv-01817-RM-KLM, 2014 WL 5312541, at *1 (D. Colo. Oct. 17, 2014). The District of Colorado agreed, issuing an injunction that barred the state from enforcing those laws as a basis to deny marriage to same-sex couples or to deny recognition of otherwise valid same-sex marriages entered in other states. Id. Colorado appealed the court’s ruling to the Tenth Circuit, and the injunction entered in Burns was stayed pending resolution of a similar case from Utah that had previously been appealed. See Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014).

The Tenth Circuit considered the Kitchen case, and affirmed the District of Utah’s ruling that Utah’s laws barring marriage between same-sex couples were unconstitutional under the United States Constitution. See Kitchen, 755 F.3d 1193, 1208-09. Utah appealed the Tenth Circuit’s decision to the United States Supreme Court, but the Supreme Court denied certiorari review in October 2014, allowing the Tenth Circuit’s decision to stand. See Herbert v. Kitchen, 135 S.Ct. 265 (2014). Based on the Supreme Court’s denial of certiorari review, the Tenth Circuit issued an order lifting the stay in Kitchen and allowing same-sex marriages to proceed in Utah. See Kitchen v. Herbert, No. 13-4178, 2014 WL 4960471 at *1 (10th Cir. Oct. 6, 2014).

In light of the final decision in Kitchen, the District of Colorado entered a final order in Burns concluding that Colorado’s laws impermissibly violated same-sex couples’ fundamental right to marry under the United States Constitution. 2014 WL 5312541, at *1. The Court permanently enjoined Colorado from enforcing or applying Colo. Rev. Stat. § 14-2-104(1)(b) and Colo. Rev. Stat. 14-2-104(2) as a basis to deny marriage to same-sex couples, or to deny recognition of otherwise valid same-sex marriages entered in other states. Id. at *2. See also POMS GN 00210.003 (Colorado recognizes same-sex marriages from other states as of October 7, 2014).

III. Analysis

Pursuant to the Canadian Civil Marriage Act and Ontario law, same-sex marriage was legal in Canada when J~ and P~ were married in December 2007. See POMS PR 05825.008 (citing Halpern, et al. v. Attorney General of Canada, et al., (2003) 65 O.R. 3d 161 (Can. Ont. C.A.); Civil Marriage Act, S.C. 2005 c.3, § 2, §5(1)). Although the couple was domiciled in Colorado at the time of their marriage, Canadian law did not require them to be Canadian residents in order for the marriage to be valid.

Colorado law provides that marriages contracted outside of the state “that were valid at the time of the contract . . . are valid in this state.” Colo. Rev. Stat. § 14-2-112 (West 2014). The decision in Burns invalidated the specific portion of Colorado law which denied recognition for same-sex marriages from outside of the state of Colorado. See Burns, 2014 WL 5312541, at *2 (citing Colo. Rev. Stat. § 14-2-104(2)). Thus, following Burns, Colorado will recognize J~ and P~’s valid Canadian marriage as of December 2014, when P~ filed her application.

Conclusion

For the reasons stated above, Colorado will recognize a same-sex marriage celebrated in Canada if the marriage was valid under Canadian law. J~ and P~’s marriage was valid under Canadian law, therefore, P~ is considered a “wife” for purposes of determining her entitlement to spousal benefits under the Act. See POMS GN 00305.020 (providing that a certified copy or statement as to a public record of marriage is preferred proof of marriage, and noting foreign records are acceptable).

John J. Lee

Regional Chief Counsel

Region VIII, Denver

Keeya Jeffrey

Assistant Regional Counsel

The number holder (NH) and claimant married in Ontario, Canada in May 2006 and currently reside in Pennsylvania. The NH began receiving retirement benefits effective October 2010. The claimant filed an application for spouse’s benefits on the NH’s record in February 2015. The same-sex marriage was valid under Canadian law but the question remains whether Pennsylvania would recognize the foreign marriage. In 1996, Pennsylvania’s Legislature banned same-sex marriage by limiting the definition of marriage to a union between one man and one woman voiding same-sex marriages entered into in another state or foreign jurisdiction. However, on May 20, 2014, a federal district court issued a ruling in the case of Whitewood v. Wolf where “same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth.” Because the NH and claimant’s marriage was valid and in effect when the Whitewood decision was issued, Pennsylvania would recognize the Canadian marriage as of May 20, 2014 (the date of the Whitewood decision).

QUESTION PRESENTED

Is the Canadian same-sex marriage of K~ (claimant) and G~, the number holder (NH), recognized under Pennsylvania law where the couple entered into a same-sex marriage in Ontario, Canada in 2006?

OPINION

Yes. The Canadian same-sex marriage of the claimant and the NH would be recognized in Pennsylvania as of May 20, 2014, the date of the decision in Whitewood v. Wolf, 992 F. Supp.2d 410 (M.D. Pa. 2014).

BACKGROUND ^[5]

The claimant and the NH were married on May XX, 2006 in Ontario, Canada.^[6]

  They currently reside in Pennsylvania. The NH is a United States citizen and meets Social Security’s fully insured status test for retirement benefits. The NH filed an application for retirement benefits on July XX, 2010 and began receiving benefits effective October 2010, when he attained age 62.

The claimant is an Australian citizen who became a lawful permanent resident of the United States on January XX, 2015. On February XX, 2015, the claimant filed an application for spouse’s benefits on the NH’s record. The claimant is currently 69 years old and does not meet Social Security’s fully insured status test to receive retirement benefits.

ANALYSIS

An individual is entitled to spousal benefits if he or she is the spouse of the insured based on a relationship described in 20 C.F.R. §§ 404.345, 404.346 (2014). See also Section 202(b), (c) of the Social Security Act (Act), 42 U.S.C. § 402(b), (c) (authorizing wife’s and husband’s insurance benefits); 20 C.F.R. § 404.330 (listing other requirements for entitlement to husband’s or wife’s benefits). An individual is entitled to spousal benefits if he or she is the spouse of the insured based on a relationship described in 20 C.F.R. §§ 404.345, 404.346 (2014). See also Section 202(b), (c) of the Act (Act), 42 U.S.C. § 402(b), (c) (authorizing wife’s and husband’s insurance benefits); 20 C.F.R. § 404.330 (listing other requirements for entitlement to husband’s or wife’s benefits).

The Act directs the agency to look to state law in determining family status. Section 216(h)(1)(A)(i) of the Act, 42 U.S.C. § 416(h)(1)(A)(i). The agency will determine whether an applicant is the spouse of an insured individual by determining “if the courts of the State in which the insured individual is domiciled at the time such applicant files the application . . . would find that such applicant and such insured individual were validly married at the time of such application.” Id. We will determine whether the marriage is valid in the state of domicile at the time of the application or the death of the insured individual, whichever is relevant. If we determine that the marriage is not valid, we must then determine whether the claimant could nonetheless be deemed the spouse of the insured individual under section 216(h)(1)(A)(ii) of the Act.

As an initial matter, the claimant and NH were validly married under the law of Ontario, Canada. Same-sex marriages have been permitted 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.). In addition, there appears to be no Canadian residency requirement to be married in Canada. The Canadian Civil Marriage Act specifically recognizes civil marriages of non-resident persons:

A marriage that is performed in Canada and that would be valid in Canada if the spouses were domiciled in Canada is valid for the purposes of Canadian law even though either or both of the spouses do not, at the time of the marriage, have capacity to enter into it under the law of their respective state of domicile.

Civil Marriage Act § 5(1).

In sum, same-sex marriage was legal in Ontario when the claimant and the NH married on May XX, 2006. Further, Canadian law did not require them to be Canadian residents to enter into a valid same-sex Canadian marriage. We therefore conclude that the same-sex marriage was a valid marriage under Canadian law.

Although the same-sex marriage between the claimant and the NH was valid in Ontario, Canada, the question remains whether Pennsylvania would recognize the marriage. See Cooney v. W.C.A.B., 94 A.3d 425 (Pa. Cmmw. Ct. 2014) (citing Commonwealth v. Case, 189 A.2d 756, 759-60 (Pa. Super. Ct. 1963)) (under Pennsylvania law, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into, unless the marriage is “repugnant” to Pennsylvania public policy or prohibited expressly by law.)

In 1996, Pennsylvania’s Legislature banned same-sex marriage by limiting the definition of marriage to a union between one man and one woman and voiding same-sex marriages entered into in another state or foreign jurisdiction. 20 Pa. C.S.A. §§ 1102^[7] and 1704.^[8] As a result, while these statutory provisions were in effect, same-sex couples married in foreign jurisdictions were not considered “legal spouses” under Pennsylvania law. Id.; see In re E.M.I., 57 A.3d 1278, 1286 (Pa. Super. 2012) (holding that Pennsylvania does not yet recognize marriages between same-sex couples pursuant to sections 1102 and 1704, and that “same-sex couples are not considered legal ‘spouses’ under Pennsylvania law”).

On May 20, 2014, a federal district court issued an opinion in the case of Whitewood v. Wolf, 992 F. Supp.2d 410 (M.D. Pa. 2014), holding that sections 1102 and 1704 of Pennsylvania’s marriage laws violated both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution. Accordingly, the court permanently enjoined the enforcement of these laws stating, “By virtue of this ruling, same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth.” Whitewood, 992 F. Supp. 2d at 431.^[9] Therefore, as of May 20, 2014, Pennsylvania recognizes same-sex marriages that were valid in the jurisdiction in which they were celebrated.

In this case, as discussed, the couple’s same-sex marriage was valid in Ontario, Canada, where the marriage took place. Because the marriage was valid and in effect when the Whitewood decision was issued, Pennsylvania would recognize the couple’s foreign same-sex marriage as of May 20, 2014, the date of the Whitewood decision.

CONCLUSION

For the reasons stated above, it is our opinion that the claimant’s foreign same-sex marriage would be recognized under Pennsylvania law as of May 20, 2014.

Nora Koch

Acting Regional Chief Counsel, Region III

By: _________________________

Tara A. Czekaj

Assistant Regional Counsel

The number holder (NH) and claimant were married in 2005 in T~, Ontario, Canada. The NH was domiciled in Minnesota and became entitled to benefits beginning in February 2013. The claimant filed for spouse’s benefits on the NH’s earnings record in November 2013. Since August 1, 2013, Minnesota has recognized same-sex marriages entered into in other jurisdictions. The same-sex marriage was legal in Canada when the claimant and the NH married in 2005. Since the marriage was valid under Canadian law, the couple’s marriage was also recognized as valid in Minnesota. Therefore, the claimant is entitled to spouse’s benefits on the NH’s earnings record.

You asked whether the claimant, M~, is entitled to benefits as the spouse of the number holder (NH), K~, based on her same-sex marriage to the NH in Canada and the NH’s domicile in Minnesota. For the reasons discussed below, we conclude that the claimant’s Canadian marriage to the NH is valid under both Canadian and Minnesota law. Therefore, you may find that the claimant is entitled to spouse’s benefits on the NH’s account.

BACKGROUND

The claimant and the NH were married on November XX, 2005, in T~, Ontario, Canada. The evidence submitted to OGC includes a copy of their marriage certificate from the Registrar General of Ontario, Canada.^[10] They are still married and live in Minnesota.

The NH became entitled to benefits beginning in February 2013. The claimant filed for spouse’s benefits on the NH’s record on November XX, 2013. The NH was domiciled in Minnesota at the time the claimant’s application was filed.

DISCUSSION

I. Social Security Act and Regulations

Under Title II of the Social Security Act (the Act), a claimant may be entitled to benefits as the wife or husband of an insured individual who is entitled to old-age or disability benefits. See Section 202(b)(1), (c)(1) of the Act; see also 20 C.F.R. § 404.330. To establish her relationship as the insured’s spouse, the claimant must show that the courts of the state in which the insured is domiciled at the time the application was filed would find that the claimant and the insured were validly married at the time the application was filed.^[11] See Section 216(h)(1)(A)(i) of the Act; 20 C.F.R. § 404.345; POMS GN 00210.002B, RS 00202.001A.1.

Following the U.S. Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), the agency is no longer prohibited from recognizing same-sex marriages for purposes of determining benefits. See POMS GN 00210.001. As such, all claims filed on or after June 26, 2013, or that were pending final determinations at the time of the decision will be subject to the Windsor instructions in the POMS at GN 00210.000. See id. As relevant to this case, where a claimant entered into a same-sex marriage in a foreign jurisdiction, the agency must determine whether the foreign marriage is recognized under state law criteria of the NH’s domicile. See POMS GN 00210.006B.2.a. Specifically, a claimant is considered married for Title II benefits purposes if the foreign same-sex marriage: (1) would be recognized by the courts of the state of the NH’s domicile as valid, and (2) is valid in the jurisdiction it was celebrated in. See id.

Here, the claimant and the NH were married in Ontario, Canada. The NH was domiciled in Minnesota at the time of the claimant’s application for spouse’s benefits and continues to live in Minnesota. Thus, we look to Minnesota and Canadian law to determine whether the claimant and the NH are validly married, for purposes of entitlement to spouse’s benefits under Title II of the Act.

II. Minnesota Law Regarding Same-Sex Marriage

Minnesota legalized same-sex marriage in August 2013. Its marriage statute was amended to read that “[a] civil marriage, so far as its validity in law is concerned, is a civil contract between two persons.” Marriage—Civil Marriage Between Two Persons—Exemptions and Protections, ch. 74, § 2, 2013 Minn. Sess. Law Serv. (West) (codified as amended at Minn. Stat. § 517.01). The amendment removed prior language indicating that marriage could only be contracted between “two persons of the opposite sex,” and replaced it with the gender-neutral term “two persons.” See id. The 2013 law also deleted a provision which prohibited marriages between persons of the same sex. See id. § 3 (deleting former Minn. Stat. § 517.03 subd. 1(a)(4)). It further enacted a new provision that, for purposes of implementing the rights and responsibilities of spouses in a civil marriage between persons of the same sex, gender-specific terminology (such as “husband,” “wife,” or similar terms) must be construed in a neutral matter to refer to a person of either gender. See id. § 6 (codified at Minn. Stat. § 517.201 subd. 2).

Minnesota also recognizes lawful marriages between same-sex couples solemnized in other jurisdictions. The Minnesota Supreme Court has long held that “[t]he validity of a marriage normally is determined by the law of the place where the marriage is contracted. If valid by that law the marriage is valid everywhere unless it violates a strong public policy of the domicile of the parties.” Laikola v. Engineered Concrete, 277 N.W.2d 653, 655-56 (Minn. 1979) (internal quotations and citation omitted). Previously, Minnesota’s marriage statute expressly declared void same-sex marriages that were recognized by another state or foreign jurisdiction. See Minn. Stat. § 517.03 subd. 1(b) (2013)^[12] ; Laikola, 277 N.W.2d at 656 (finding that marriages declared void by Minnesota legislature violated the state’s strong public policy). However, the 2013 law deleted this provision in its entirety. See Marriage—Civil Marriage Between Two Persons—Exemptions and Protections, ch. 74, § 3, 2013 Minn. Sess. Law Serv. (West).

Thus, since August 1, 2013, Minnesota has recognized as valid same-sex marriages entered into in other jurisdictions. Accordingly, to determine whether Minnesota would recognize the same-sex marriage between the claimant and the NH as valid, we must determine whether the marriage was valid in Ontario, Canada at the time it was entered into.

III. Canadian Law Regarding Same-Sex Marriage^[13]

On June 10, 2003, the Court of Appeal for Ontario, Canada, legalized same-sex marriage in Ontario, holding that the common law definition of marriage as between one man and one woman violated the Canadian Charter of Rights and Freedoms. See Halpern, et al. v. Attorney General of Canada, et al. (2003), 65 O.R. 3d 161 (Can. Ont. C.A.), available at: http://www.ontariocourts.on.ca/decisions/2003/june/halpernC39172.htm.

Subsequently, 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. 33 (Can.), available at http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2005_33/FullText.html. In addition, on June 26, 2013, the Canadian Parliament amended the Civil Marriage Act, specifically recognizing marriages of non-resident persons retroactively. See Civil Marriage of Non-Residents Act, S.C. 2013, c. 30 (Can.), available at: http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2013_30/FullText.html

In sum, same-sex marriage was legal in Canada when the claimant and the NH married in Ontario in November 2005. Further, Canadian law did not require them to be Canadian residents to enter into a valid same-sex Canadian marriage. We therefore conclude that their same-sex marriage was valid under Canadian law. Accordingly, their marriage is also recognized as valid in Minnesota.

CONCLUSION

For the reasons discussed above, we conclude that the claimant’s marriage to the NH is valid under both Canadian and Minnesota law. Assuming that the claimant has satisfied other statutory and regulatory requirements, she is entitled to spouse’s benefits on the NH’s account. If you have any further questions concerning this matter, please contact the undersigned at (877) 800-7578 ext. 19106.

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By: ______________________________

Cristine Bautista

Senior Counsel

Florida courts generally determine the validity of a marriage based on the laws of the place where the marriage occurred. The claimant and the number holder (NH) married in Ontario, Canada in September 2003 and domiciled in Florida at the time the claimant filed an application for spouse’s benefits. Since Florida recognizes valid marriages from foreign jurisdictions, the couple is considered validly married under Florida law for purposes of determining the claimant’s entitlement to benefits as the NH’s spouse.

Question

You asked whether the number holder (NH) and Claimant, who entered into a same-sex marriage in Canada, were validly married under Florida law for purposes of determining Claimant’s entitlement to Title II insurance benefits as the NH’s spouse.

Short Answer

Claimant is validly married to NH under Florida law for determining Claimant’s entitlement to benefits as the NH’s spouse.

Background

According to the information provided, Claimant married NH in September 2003, in Ontario, Canada. Both the Claimant and NH are male. NH currently receives old-age insurance benefits. In January 2014, Claimant applied for husband’s Insurance benefits (HIB) on NH’s earnings record. Claimant and NH lived in N~ P~ B~, Florida, when Claimant filed his HIB application.

Discussion

A claimant may be eligible for HIB or wife’s insurance benefits if he or she is the husband or wife of an individual entitled to old-age insurance benefits. See Social Security Act (Act) § 202(b)(1),(c)(1); 20 C.F.R. § 404.330(a) (2014).^[14] A claimant may qualify as the husband or wife of a living insured individual if the claimant is validly married to the insured individual under the laws of the state where the insured individual was domiciled at the time of the claimant’s application. See Act § 216(b), (f), (h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345; see also Program Operations Manual System (POMS) GN 00210.006(B) (stating SSA opinions regarding validity of foreign same-sex marriages look to laws of the state of NH’s domicile and must address whether marriage would be recognized as valid by the courts of the state of NH’s domicile). NH lived in Florida when Claimant applied for HIB on NH’s earnings record. Therefore, we look to Florida law to determine if Claimant and NH are validly married.

Florida generally approves of the act of marriage, regardless of where it is contracted, and presumes a marriage is valid. See Johnson v. Lincoln Square Properties, Inc., 571 So. 2d 541, 542 (Fla. Dist. Ct. App. 1990); Guelman v. De Guelman, 453 So. 2d 1159, 1160 (Fla. Dist. Ct. App. 1984). In addition, “[i]t is presumed that an official performing a marriage service, whether in a foreign or domestic jurisdiction would not have performed the service if there was any known impediment to the marriage.” Guelman, 453 So. 2d at 1160. Furthermore, “all presumptions necessary to make a marriage valid, including the capacity to contract, attach upon proof of a ceremonial marriage and cohabitation by the parties under the belief that they were lawfully married.” Anderson v. Anderson, 577 So. 2d 658, 660 (Fla. Dist. Ct. App. 1991).

Florida courts generally determine the validity of a marriage based on the laws of the place where the purported marriage occurred. See Johnson, 571 So. 2d at 542; see also POMS GN 00305.005(B)(1) (“The law of the place where a marriage occurred ordinarily determines the validity of a marriage. If the marriage is valid in that jurisdiction, it is usually held valid in other places.”). “The law in Florida on this point is consistent with the general rule recognized in other jurisdictions that the validity of a marriage is to be determined by the law of the jurisdiction where the marriage was entered into.” Anderson, 577 So. 2d at 660.

Nevertheless, a Florida court “need not recognize as valid a marriage which is valid in the jurisdiction where consummated where recognition would affront the public policy of the forum state.” Id. at 660 n.3; see also POMS GN 00305.005(B)(1) (“even though the marriage was valid where it was celebrated, it may be void in the state of the worker’s domicile if it violates the law or public policy of that state”). Similarly, states are not required to give full faith and credit to public acts (e.g., marriages) of another state if the public act is contrary to the public policy of the forum State.^[15] See Nevada v. Hall, 440 U.S. 410, 421-24 (1979); Wilson v. Ake, 354 F. Supp. 2d 1298, 1303-04 (M.D. Fla. 2005).

The Florida Constitution, Article I, Section 27, states: “Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.” Similarly, a Florida statute states, “[f]or the purposes of interpreting any state statute or rule, the term ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the term ‘spouse’ applies only to a member of such a union.” Fla. Stat. Ann. § 741.212(3) (West 2014). Florida statutes state that Florida does not recognize marriages “between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, . . . for any purpose.” Fla. Stat. Ann. § 741.212(1). Florida statutes also provide that it “may not give effect to any public act, record, or judicial proceeding of any state, territory, possession, or tribe of the United States or of any other jurisdiction, either domestic or foreign, or any other place or location” respecting a marriage between persons of the same sex. Fla. Stat. Ann. § 741.212(2).

Despite Florida’s statutes and constitutional provisions prohibiting same-sex marriage, two Florida circuit courts recently held Florida’s same-sex marriage ban violates the Federal Constitution’s guarantees of due process and/or equal protection. See Pareto v. Ruvin, No. 14-1661 CA 24 (Fla. Cir. Ct. Jul. 25, 2014); Huntsman v. Heavilin, No. 2014-CA-305-K (Fla. Cir. Ct. Jul. 17, 2014). The State of Florida has appealed Pareto and Huntsman to Florida’s Third District Court of Appeal. See State v. Pareto, No. 3D14-1816 (Fla. Dist. Ct. App. filed Jul. 28, 2014); State v. Huntsman, No. 3D14-1783 (Fla. Dist. Ct. App. filed Jul. 23, 2014). The circuit courts stayed their rulings pending appeal. See Pareto, No. 3D14-1816; Emergency Motion to Lift the Stay, Huntsman, No. 2014-CA-305-K (filed Jul. 21, 2014).

Additionally, a federal district court recently held Florida’s statutes and constitutional provisions denying the recognition of same-sex marriages violate the Federal Constitution’s guarantee of due process and equal protection under the law. See Brenner v. Scott, 999 F. Supp. 2d 1278, 1290 (N.D. Fla. 2014). The Brenner court’s preliminary injunction directs the Secretary of the Florida Department of Management Services and the Florida Surgeon General to “take no steps to enforce or apply” Florida’s constitutional or statutory provisions prohibiting the recognition or licensing of same-sex marriages.^[16] Id. at 1293. The Brenner court stayed its injunction, but the stay expired on January 5, 2015, and both the United States Supreme Court and the United States Court of Appeals for the Eleventh Circuit have denied defendants’ requests to extend the stay.^[17] See Brenner, No. 4:14-cv-00107-RH-CAS, Document 95 (N.D. Fla. filed Nov. 5, 2014); Armstrong v. Brenner, --- U.S. --- (No. 14A650) (2014); Order Denying Motion to Stay Pending Appeal, Brenner v. Armstrong, No. 14-14061 (11th Cir. Dec. 3, 2014).

Following the United States Supreme Court’s denial of a stay extension of the Brenner injunction, the Pareto circuit court also lifted its stay on January 5, 2015, and authorized the Miami-Dade Clerk of the Court to issue marriage licenses to prospective spouses of the same sex. See Pareto, Defendant Harvey Rubin’s Motion for Clarification and Motion to Expedite, No. 14-1661 CA 24 (filed Dec. XX, 2014); id., Order on Defendant Harvey Rubin’s Motion for Clarification and Motion to Expedite (issued Jan. 5, 2015). Additionally, on December 31, 2014, a Florida Ninth Judicial Circuit Judge reportedly issued a declaratory order authorizing the Orange County Clerk of Courts to begin issuing same-sex marriage licenses on January 6, 2015.^[18] See J~, Excitement, frustration as judge clears same-sex marriage licenses (Dec. 31, 2014), http://www.baynews9.com/content/news/baynews9/news/article.html/content/

news/articles/cfn/2014/12/31/orange_county_same_s.html (last visited Jan. 23, 2015).

In this case, Claimant and NH provided a Certificate of Marriage issued in Ontario, Canada in September 2003. Ontario, Canada recognized same-sex marriage as of June XX, 2003, and Canada recognized the validity of same-sex marriage nationwide as of July XX, 2005. See The Law Library of Congress, Report for U.S. Social Security Administration LL File No. 2014-010685, Canada: Legal Recognition of Same-sex Marriage (2014). Thus, because the marriage between Claimant and NH is valid and Florida recognizes valid marriages from foreign jurisdictions, Claimant and NH are validly married under current Florida law.

Conclusion

Claimant is validly married to NH under Florida law for purposes of determining Claimant’s entitlement to HIB on NH’s earnings record.

Mary Ann Sloan

Regional Chief Counsel

By: _________________

Owen Keegan

Assistant Regional Counsel

The Massachusetts courts recognize the claimant’s marriage performed in Ontario, Canada as valid. Therefore, the marriage is valid under the Act and for determining the claimant’s entitlement to spousal benefits under Title II of the Act.

QUESTION PRESENTED

Whether L, the claimant, and J~, the insured number holder (NH), who were married in Ontario, Canada in May 2005, and are now domiciled in Massachusetts, are validly married for the purpose of determining the claimant’s entitlement to spouse’s benefits under Title II of the Social Security Act (the Act).

SHORT ANSWER

Yes. Because Massachusetts would recognize the claimant’s marriage to the NH as valid, the agency may rely on the marriage in determining the claimant’s eligibility for Title II spouse’s benefits.

BACKGROUND

In December 2014, the claimant filed an application for spouse’s benefits based on her marriage to the NH. The couple married in May 2005, in K~, Canada, which is located in the province of Ontario. The NH currently lives in H~, Massachusetts. The NH affirmed these allegations in her claim for auxiliary benefits.

APPLICABLE LAW

To be entitled to spouse’s benefits under the Act, a claimant must show, among other things, that she is the insured’s spouse. See 42 U.S.C. §§ 402(b), 416(b); see also 20 C.F.R. § 404.330(a). Under the Act:

An applicant is the . . . wife . . . of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application . . .

42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345, Program Operations Manual System (POMS) GN 00210.006(B) (stating SSA opinions regarding validity of foreign same-sex marriages look to laws of the state of the NH’s domicile and must address whether marriage would be recognized as valid by the courts of the state of the NH’s domicile). Since the NH was domiciled in Massachusetts at the time the application was filed^[19] , we must determine if, under Massachusetts law, the marriage was valid at the time the claimant applied for spouse’s benefits. Id.

ANALYSIS

Massachusetts courts would consider the claimant and the NH to be validly married

In order for Massachusetts to recognize a marriage performed in a foreign country, certain requirements must be satisfied. The relevant statute provides that:

If any person residing and intending to continue to reside in this commonwealth is disabled or prohibited from contracting marriage under the laws of this commonwealth and goes into another jurisdiction and there contracts a marriage prohibited and declared void by the laws of this commonwealth, such marriage shall be null and void for all purposes in this commonwealth with the same effect as though such prohibited marriage had been entered into in this commonwealth.

Mass. Gen. Laws Ann. ch. 207 § 10. Although not an issue here, this section might be read to mean that a same-sex marriage contracted in a foreign jurisdiction by a Massachusetts resident seeking to avoid a prohibition that existed in Massachusetts, would not be recognized as valid. A recent decision from the Supreme Judicial Court of Massachusetts, however, strongly indicates that such a union would be recognized as valid, in part, because “nonrecognition allows parties to avoid their obligations or leads to inconsistent legal obligations.” See Elia–Warnken v. Elia, 463 Mass. 29, 34 (2012), quoting Singer, Same-Sex Marriage, Full Faith and Credit, and the Evasion of Obligation, 1 Stan. J. C.R. & C.L. 1, 29, 36, 50 (2005) (“the ‘needs of the interstate and international systems are better served by having a single clear answer to the validity of marriage,’ because nonrecognition allows parties to avoid their obligations or leads to inconsistent legal obligations”).

Additionally, the Court acknowledged “the general rule that the validity of a marriage is governed by the law of the State where the marriage is contracted.” Elia-Warnken, 463 Mass. at 32 (quoting Cote-Whitacre v. Department of Pub. Health, 446 Mass. 350, 369 (2006) (Spina, J., concurring)). See also Sutton v. Warren, 51 Mass. 451 (1845) (recognizing an English marriage and stating, “A marriage, valid where it is contracted, is valid in this State, if not incestuous by the law of nature, or not made void by Rev. Sts. c. 75, § 6, although it would be void by the law of this State, if contracted here”). With respect to out-of-state marriages, the Court explained, “As such, we ordinarily extend recognition to out-of-State marriages under principles of comity, even if such marriages would be prohibited here, unless the marriage violates Massachusetts public policy, including polygamy, consanguinity and affinity. G.L. c. 207, §§ 1, 2, 4.” Elia-Warnken, 463 Mass. at 32 (emphasis supplied) (citing Commonwealth v. Lane, 113 Mass. 458, 463 (1873).

After evaluating the facts of this case, we believe that the marriage would be recognized by Massachusetts courts as valid. At the time of the marriage, the NH was a citizen resident of Massachusetts and has maintained that residency. Next, on the date of the wedding ceremony—May 2005—both the claimant and the NH appear to have had the legal capacity^[20] to marry in Massachusetts, which has allowed same-sex couples to marry since May 2004.^[21] Additionally, the marriage was celebrated in conformance with the laws 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.).^[22] Additionally, although there appears to have been no Canadian residency requirement to be married in Ontario in May 2005^[23] , we note that the claimant identified herself as a Canadian resident in the marriage certificate.

In sum, same-sex marriage was legal in both Massachusetts and Ontario when the claimant and the NH married in May 2005. Further, even though Ontario did not require Canadian residency to enter into a valid, same-sex marriage, it appears that the claimant was a Canadian resident. We therefore conclude that the couple’s marriage would be viewed as valid by a Massachusetts court.

CONCLUSION

Massachusetts will recognize a same-sex marriage solemnized in a foreign jurisdiction if neither participant was a Massachusetts resident who would have been prohibited from marrying under Massachusetts law. Additionally, Massachusetts courts look to the laws where the marriage is contracted to determine whether a marriage is valid. Thus, because the marriage between the claimant and the NH would have not have been prohibited under Massachusetts law and was celebrated in conformance with the laws of Ontario, we believe a Massachusetts court would recognize it as valid. As such, the marriage is valid under the Act and for determining the claimant’s entitlement to spousal benefits under Title II of the Act.

Sujata Rodgers

Supervisory Attorney

Office of the Regional Chief Counsel, Region I

By: ______________

Candace Lawrence

Assistant Regional Counsel

The SSI recipient entered into a valid same-sex marriage in Ontario, Canada in August 2003. As of October 6, 2014, Missouri recognized the SSI recipient’s marriage to her spouse.

ISSUE PRESENTED

Missouri residents J~ (supplemental security income (SSI) recipient) and S~ entered into a same-sex marriage in Ontario, Canada, in August 2003. Do the parties have a valid marriage under Canadian law and is the marriage recognized by the state of Missouri?

BACKGROUND

In August 2003, the SSI recipient and another woman married in W~, Ontario, Canada. The couple resides in Missouri.

ANALYSIS ^[24]

The Title XVI program requires an evaluation of family relationships such as marriage for purposes of income and deeming purposes. In this case, the issue that needs resolution is whether SSA should apply spousal deeming based on a same-sex marriage performed in a foreign jurisdiction. Because the SSI recipient and the other individual make their permanent home in Missouri, we apply Missouri law to determine whether their marriage is valid. See 42 U.S.C. §§ 416(h)(1)(A)(i), 1382c(d); 20 C.F.R. § 416.1806(a)(1); Program Operations Manual System (POMS) GN 00305.005, SI 00501.150. Under Missouri law, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See Hartman v. Valier & Spies Milling Co., 202 S.W.2d 1, 5-6 (Mo. 1947); Boyer v. Dively, 58 Mo. 510 (1875) (“The general rule, that a marriage, valid where celebrated, is valid everywhere, is a matter of comity of nations and States.”). The only exception is when the marriage is in violation of strong public policy of Missouri. See Hesington v. Estate of Hesington, 640 S.W.2d 824, 825-26 (Mo. Ct. App. 1982) (quoting Restatement (Second) of Conflict of Laws § 283(2) (1971)) (“A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.”).

As pertinent here, on October 6, 2014, Missouri began recognizing as valid same-sex marriages entered into in other jurisdictions. See POMS GN 00210.003 (noting Missouri recognized same-sex marriages on October 6, 2014); see also Statement of Attorney General Chris Koster, dated Oct. 6, 2014 (noting that his office would not appeal the circuit court’s ruling in Barrier v. Vasterling, Civ. No. 1416-CV03892, Order and Judgment (Jackson Cnty. Mo. Cir. Ct., Oct. 3, 2014) (finding Missouri statutory and constitutional provisions prohibiting recognition of extra-jurisdictional valid same-sex marriages violated the Fourteenth Amendment to the United States Constitution)), available at http://ago.mo.gov/newsreleases/2014/ Attorney_General_Kosters_statement_on_his_decision_not_to_appeal_in_Barrier_v_Vasterling/ (last visited on Feb. 19, 2015). Accordingly, the recognition of same-sex marriages performed in other jurisdictions does not appear to violate a strong public policy of Missouri.

Therefore, we next consider whether the SSI recipient’s marriage is valid under the law of Ontario, Canada. See Hartman, 202 S.W.2d at 5-6; Boyer, 58 Mo. 510; POMS GN 00210.006. Same-sex marriages have been legal in Ontario since June 10, 2003. See Halpern v. Canada, [2003] 65 O.R. 3d 161 (Ont. C.A.), available at: http://www.ontariocourts.on.ca/decisions/2003/june/halpernC39172.htm

(last visited on Feb. 18, 2015). 

Indeed, same-sex marriage has been legal across Canada since July 20, 2005, the effective date of the federal-level Civil Marriage Act. See Civil Marriage Act, S.C. 2005, c. 33, § 2, available at:

http://laws-lois.justice.gc.ca/eng/ acts/c-31.5/page-1.html

(last visited Feb. 19, 2015). Section 2 of the Civil Marriage Act states that marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others. See id. at 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. See id. at c. 33, § 4.

Additionally, there is no residency requirement for marriage in Canada. The Civil Marriage Act specifically speaks of the recognition of civil marriages of nonresident persons:

A marriage that is performed in Canada and that would be valid in Canada if the spouses were domiciled in Canada is valid for the purposes of Canadian law even though either or both of the spouses do not, at the time of the marriage, have the capacity to enter into it under the law of their respective state of domicile. Id. at § 5(1).

Here, the SSI recipient and another woman entered into a same-sex marriage in W~, Ontario, Canada, in August 2003. Because same-sex marriage has been legal in Ontario since June 10, 2003, and because Missouri recognizes same-sex marriages legally performed in other jurisdictions, including foreign jurisdictions, we conclude that Missouri recognized the SSI recipient’s marriage as of October 6, 2014.

CONCLUSION

The SSI recipient entered into a valid same-sex marriage in Ontario, Canada in August 2003. As of October 6, 2014, Missouri recognized the SSI recipient’s marriage to her spouse.

Rhonda J. Wheeler

Acting Chief Counsel, Region VII

By___________________

Ellie Dorothy

Assistant Regional Counsel

Arizona will recognize a same-sex marriage occurring in Canada, so long as the marriage was valid under Canadian law. Here, the marriage between NH and Claimant was valid under Canadian law, and therefore, Arizona also recognizes it as valid. Since the marriage is valid under the law of the domicile state, the agency should recognize the marriage for spousal benefit purposes.^[25]

QUESTION

You asked whether Claimant and Number Holder (NH), who entered into a same-sex marriage in Ontario, Canada, in August 2012, are validly married for determining Claimant’s entitlement to spousal benefits on NH’s record. The couple currently resides in Arizona.

SHORT ANWER

Yes. Arizona currently recognizes same-sex marriages validly entered in other jurisdictions. The marriage between Claimant and NH was valid under Canadian law; therefore, assuming Claimant meets all other requirements, he is entitled to benefits as NH’s spouse under the Social Security Act.

Yes. The marriage between Claimant and NH is considered valid under the Social Security Act (the Act).

SUMMARY OF EVIDENCE

In October 2014, Claimant filed an application for spouse’s benefits on NH’s account. Claimant submitted a marriage certificate issued by the Office of the Registrar General in Ontario, Canada. The certificate shows that Claimant and NH married each other in August 2012 in K~, Ontario. The certificate also reflects that Claimant and NH were residents of Ontario, Canada at the time of their marriage. The G~, Arizona field office indicated that the couple currently resides in Arizona.

APPLICABLE LAW

Federal Law

A claimant is entitled to spousal benefits under Title II of the Social Security Act (Act) if, among other things, he or she is the spouse of an insured individual who is entitled to old-age or disability benefits. ^[26] see Act §§ 202(b),(c), 216(a)(1); 20 C.F.R. § 404.330. The claimant bears the burden of proving that he is in a valid marital relationship ^[27] with the insured and is therefore the insured’s spouse. See 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 or when the insured died. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345; Program Operations Manual System (POMS) GN 00210.006.B.1.

Here, our specific inquiry is whether the Canadian same-sex marriage between Claimant and NH is valid under Arizona law.

Arizona Law

Historically, Arizona laws prohibited same-sex marriage. Article 30, Section 1, of the Arizona Constitution provided only a marriage between “one man and one woman” is valid or recognized as a marriage. Ariz. Const. Art. 30, § 1; see also Ariz. Rev. Stat. § 25-101(C) (prohibiting same-sex marriage), § 25-125(A) (defining marriage as between a male and female person).

However, on October 7, 2014, the United States Court of Appeals for the Ninth Circuit ruled invalid the laws of Nevada and Idaho that prohibited same-sex marriages because those laws denied same-sex couples equal protection of the law under the Fourteenth Amendment. Latta v. Otter, 771 F.3d 456, (9th Cir. 2014); stay denied, 135 S.Ct. 345 (U.S. Oct. 10, 2014).

On October 17, 2014, following the precedent set by the Ninth Circuit, the Federal District Court for the District of Arizona struck down Arizona’s ban on same-sex marriage in two separate rulings. See Majors v. Horne, 14 F. Supp. 3d 1313, 1315 (D. Ariz. 2014); Connolly v. Jeanes, No. 2:14-cv-00024 JWS, 2014 WL 5320642, at *1 (D. Ariz. Oct. 17, 2014). The District Court held both Article 30, Section 1, of the Arizona Constitution and Arizona Revised Statutes §§ 25101(c), 25-125(A) unconstitutional under the Equal Protection Clause of Fourteenth Amendment to the United States Constitution and permanently enjoined the enforcement of these state laws. Id.; see also Attorney General Will Not Appeal Same-Sex Marriage Ruling, press release from the Office of Arizona Attorney General (Oct. 17, 2014), available at:

https://www.azag.gov/press-release/attorney-general-tom-horne-will-not-appeal-same-sex-marriage-ruling

(“I am issuing a letter today to the 15 county clerks of court with the directive that based on today’s decision by the Federal District Court, they can issue licenses for same sex marriages immediately.”).

Arizona recognizes the validity of marriages entered outside of Arizona if such marriages were valid under the laws of the jurisdiction where contracted. Ariz. Rev. Stat. § 25-112(A); see also Beatie v. Beatie, 235 Ariz. 427, 333 P.3d 754, 760 (Ariz. Ct. App. 2014) (concluding Family Court erred by not recognizing Hawaii marriage of transgender person in part because “Arizona has enacted an explicit extension of the federal Full Faith and Credit Clause to marriages entered into in other states”) (citing Ariz. Rev. Stat. § 25-112(A)); Donlann v. Macgurn, 203 Ariz. 380, 383, 55 P.3d 74, 77 (Ariz. Ct. App. 2002) (recognizing principle that “the validity of the marriage is generally determined by the law of the place of marriage” and approving lower court’s consideration of Mexican marriage law). However, Arizona will not recognize the validity of marriages entered in other jurisdictions that are “void and prohibited” under Arizona Revised Statute § 25-101. Id.; see also Ariz. Rev. Stat. § 25-101(C) (a marriage between persons of the same sex is void and prohibited).

With the District Court’s decisions in Majors and Connolly, and the permanent enjoinder of enforcement of Arizona Revised Statute § 25-101(C), same-sex marriages are no longer “void and prohibited.” See Majors, 14 F. Supp. 3d at 1315; Connolly, 2014 WL 5320642 at *1. Thus, although we have not found any specific authority regarding same-sex marriages celebrated in other jurisdictions, based on these general principles it follows that Arizona will now recognize as valid same-sex marriages entered in other jurisdictions.

Canadian Law ^[28]

On June 10, 2003, Ontario became the first Canadian province to recognize same-sex marriage. See Halpern et al. v. Attorney General of Canada et al. , [2003] 65 O.R. 3d 161 (Ont. C.A.), http://www.ontariocourts.on.ca/decisions/2003/june/halpernC39172.htm

The Ontario Court of Appeal held that the common law definition of marriage, providing for the union of one man and one woman, violated the Canadian Charter of Rights and Freedoms. Id. at para. 142. On June 11, 2003, Ontario municipalities began issuing marriage licenses to same-sex couples.

See Marriage Licences, CITY OF O~: http://o~.ca/en/residents/laws-licenses-and-permits/birth-marriage-and-death/marriage-licences

(last visited Dec. 2, 2014).

On July 20, 2005, the Civil Marriage Act legalized same-sex marriage in every province 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.).

Finally, there appears to be no Canadian residency requirement to be married in Canada. On June 26, 2013, the Canadian Parliament amended the Civil Marriage Act, specifically recognizing civil marriages of non-resident persons:

A marriage that is performed in Canada and that would be valid in Canada if the spouses were domiciled in Canada is valid for the purposes of Canadian law even though either or both of the spouses do not, at the time of the marriage, have capacity to enter into it under the law of their respective state of domicile.

Civil Marriage Act, S.C. 2013, c. 30, pt. 1, § 5.

ANALYSIS

Pursuant to Arizona Revised Statute § 25-112(A), Arizona will recognize a marriage validly entered into outside of Arizona, so long as they are not void and prohibited under § 25-101. See Ariz. Rev. Stat. § 25-112(A). As discussed above, although § 25-101(C) previously categorized same-sex marriages as void and prohibited, the District Court permanently enjoined the State from applying § 25101(C). See Majors, 14 F. Supp. 3d at 1315; Connolly, 2014 WL 5320642 at *1. Thus, at the time Claimant filed his application for spousal benefits (October 27, 2014), Arizona recognized same-sex marriages contracted outside of Arizona so long as the marriages were valid under the laws of the jurisdiction where contracted. See 20 C.F.R. § 404.345 (looking at whether the claimant and the insured were validly married under State law at the time the claimant applied for benefits).

Here, Claimant and NH were married in August 2012 in Ontario, Canada. At that time, same-sex marriages were legal in Canada pursuant to the Civil Marriage Act. Therefore, the marriage between NH and Claimant was valid under Canadian law and will be recognized as valid in Arizona.

CONCLUSION

Arizona will recognize a same-sex marriage occurring in Canada, so long as the marriage was valid under Canadian law. Here, the marriage between NH and Claimant was valid under Canadian law, and therefore, Arizona also recognizes it as valid. Since the marriage is valid under the law of the domicile state, the agency should recognize the marriage for spousal benefit purposes. ^[29]

Connecticut will recognize a same-sex marriage that occurred in Canada if the marriage was valid under Canadian law.

QUESTION PRESENTED

Whether A~, the claimant, and E~, the insured number holder (NH), who were married in Ontario, Canada on October XX, 2009, and are now domiciled in M~, Connecticut, are validly married for the purpose of determining the claimant’s entitlement to spouse’s benefits under Title II of the Social Security Act (the Act).

SHORT ANSWER

Yes. Because Connecticut would recognize claimant’s marriage to the NH as valid, the agency may rely on the marriage in determining the claimant’s eligibility for Title II spouse’s benefits.

BACKGROUND

On July XX, 2013, the claimant filed an application for spouse’s benefits based on his marriage to the NH. The couple were married on October XX, 2009, in T~, Canada, which is located in the province of Ontario. The NH lived in M~, Connecticut at the time of the marriage and continues to reside there with the claimant. The NH affirmed these allegations in his claim for retirement benefits.

APPLICABLE LAW

To be entitled to spouse’s benefits under the Act, a claimant must show, among other things, that he is the insured’s spouse. See 42 U.S.C. §§ 402(c), 416(f); see also 20 C.F.R. § 404.330(a). Under the Act:

An applicant is the . . . husband . . . of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application . . .

42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345; POMS 0210.006. Since the insured was domiciled in Connecticut at the time the application was filed, we must determine if, under Connecticut law, the marriage was valid at the time the claimant applied for spouse’s benefits. Id.

ANALYSIS

Connecticut courts would consider the claimant and NH to be validly married.

In order for Connecticut to recognize a marriage performed in a foreign country, certain requirements must be satisfied. See Conn. Gen. Stat. Ann. § 46b-28. The relevant statute provides, in pertinent part, that:

All marriages in which one or both parties are citizens of this state, celebrated in a foreign country, shall be valid, provided: (1) Each party would have legal capacity to contract such marriage in this state and the marriage is celebrated in conformity with the law of that country…

Conn. Gen. Stat. Ann. § 46b-28.

In evaluating the facts of this case, we believe that the marriage would be recognized by Connecticut courts as valid. At the time of the marriage, the NH was a citizen resident of Connecticut. See Attachment 1 (Marriage Certificate). Next, on the date of the wedding – October XX, 2009 – both the claimant and the NH appear to have had the legal capacity ^[30] to marry in Connecticut, which has allowed same-sex couples to marry since November 2008. ^[31] In addition, it appears that the marriage was celebrated in conformance with the laws 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.). ^[32] 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. ^[33] Finally, there appears to be no Canadian residency requirement to be married in Canada. The Canadian Civil Marriage Act specifically recognizes civil marriages of non-resident persons:

A marriage that is performed in Canada and that would be valid in Canada if the spouses were domiciled in Canada is valid for the purposes of Canadian law even though either or both of the spouses do not, at the time of the marriage, have capacity to enter into it under the law of their respective state of domicile.

Civil Marriage Act § 5(1).

In sum, same-sex marriage was legal both in Ontario and at the federal level in Canada when the claimant and the NH married Ontario on October XX, 2009, 2011. Further, Canadian law did not require them to be Canadian residents to enter into a valid same-sex Canadian marriage. We therefore conclude that the same-sex marriage was a valid marriage under Canadian law.

CONCLUSION

Connecticut will recognize a same-sex marriage that occurred in Canada if the marriage was valid under Canadian law. Because the marriage between claimant and NH was valid under Canadian law, Connecticut would also recognize it as valid. As such, the marriage is valid under the Act and for determining claimant’s entitlement to spousal benefits under Title II of the Act.

Sujata Rodgers

Supervisory Attorney

By: ___________________

Candace Lawrence

Assistant Regional Counsel

On August XX, 2004, the claimant and the number holder (NH) entered into a same-sex marriage in Ontario, Canada. Because same-sex marriages had been legal in Ontario since June 10, 2003, more than a year before the claimant and the NH got married, Maryland would recognize their marriage as valid at the time of the NH’s death for purposes of determining the claimant’s status as the NH’s surviving spouse.

QUESTION PRESENTED

Is D~, (claimant), the surviving spouse of ~, the number holder (NH), where the couple entered into a same-sex marriage in Ontario, Canada?

OPINION

Yes. The claimant is the surviving spouse of the NH for purposes of disabled widower’s benefits.

BACKGROUND ^[34]

The claimant and the NH were married on August XX, 2004, in T~, Ontario, Canada. No actions were taken to terminate the marriage prior to the NH’s death. The NH was living in Maryland on March XX, 2012, the date of his death.

In May 2014, the claimant applied for disabled widower’s benefits 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

To be entitled to widow’s or widower’s insurance benefits under the Social Security Act (Act), a claimant must show, among other things, that he or she is the “widow” or “widower” of the insured. See Act § 202(e)(1), (f)(1). 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.

In this case, the claimant and the NH entered into a foreign same-sex marriage in Ontario, Canada. At the time of the NH’s death, NH was domiciled in Maryland. Accordingly, we decide surviving spouse status by applying Maryland 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; see 20 C.F.R. § 404.345, POMS GN 00210.006(B)(2). Under the law of Maryland, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into, unless the marriage is “repugnant” to Maryland public policy or prohibited expressly by the General Assembly. Port v. Cowan, 426 Md. 435, 444-45 (Md. 2012) (citing, inter alia, Henderson v. Henderson, 199 Md. 449, 458-59 (Md. 1952)).

In Maryland, marriage historically was defined as the voluntary union of one man and one woman. See Md. Code Fam. Law § 2-201 (West 2011) (“Only a marriage between a man and a woman is valid in this State.”). However, beginning in 2010, pursuant to a legal opinion by the state Attorney General, Maryland permitted the recognition as valid same-sex marriages legally entered into in other jurisdictions. See “Whether Out-of-State Same-Sex Marriage that is Valid in the State of Celebration May Be Recognized in Maryland,” 95 Op. Att’y Gen. 3 (Feb. 23, 2010), available at http://www.oag.state.md.us/Opinions/2010/95oag3.pdf (last accessed June 2, 2014). Subsequently, the Maryland legislature amended § 2-201 to recognize the validity of a marriage other than that between a man and a woman, effective January 1, 2013. See Md. Code Fam. Law § 2-201 (West 2014) (“Only a marriage between two individuals who are not otherwise prohibited from marrying is valid in this State.”). Furthermore, in Port v. Cowan, the Maryland Supreme Court recognized a same-sex marriage, validly performed in California, for the purposes of granting a domestic divorce in Maryland, conducting a comity analysis and stating that the Court could not “conclude logically that valid out-of-state same-sex marriages are ‘repugnant’ to Maryland public policy.” 426 Md. at 450-51. Accordingly, to determine whether the Maryland would recognize the marriage of claimant and the NH as valid, we must determine whether the marriage was valid in Ontario, Canada at the time it was entered into.

On June 10, 2003, the Court of Appeal for Ontario, Canada held that the 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), 172 O.A.C. 276 (Can. Ont. C.A.), available at:

http://www.ontariocourts.on.ca/decisions/2003/june/halpernC39172.htm

(last accessed June 2, 2014).

The Court then ordered that the Clerk of the City of T~ issue marriage licenses to same-sex couples who had been previously denied. Id.

On August XX, 2004, the claimant and the NH entered into a same-sex marriage in Ontario, Canada. Because same-sex marriages had been legal in Ontario since June 10, 2003, more than a year before the claimant and the NH got married, Maryland would recognize their marriage as valid at the time of the NH’s death for purposes of determining the claimant’s status 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 Maryland law. Therefore, you can find claimant to be the surviving spouse of the NH.

Nora Koch

Acting Regional Chief Counsel, Region III

By: ______________

Melissa K. Curry

Assistant Regional Counsel

Since February 1, 2008, the State of New York recognizes as valid same-sex marriages that were solemnized under laws of other states or nations.

QUESTION PRESENTED

Whether New York State would recognize the same-sex Canadian marriage of E~ (claimant) and T~, the number holder (NH).

OPINION

The claimant and the NH were lawfully married in Ontario, Canada in May 2007. ^[35] Since February 1, 2008, the State of New York, the NH’s domicile at the time of her death, recognizes as valid same-sex marriages that were solemnized under laws of other states or nations. No actions were taken to terminate the marriage prior to the death of the NH on February XX, 2009. Therefore, under the specific facts of this case, the marriage remained valid, and as a result, there would be legal support for the agency to find that the claimant is entitled to widow’s benefits on the NH’s record as her surviving spouse. ^[36]

BACKGROUND ^[37]

The claimant and the NH were married on May XX, 2007, in Ontario, Canada. The NH died on February XX, 2009, in New York, New York. Both the claimant and the NH were living in New York at the time of the NH’s death. The claimant was listed as the surviving spouse and informant on the Certificate of Death. The claimant has not remarried.

In November 2010, the claimant filed for widow’s benefits as a surviving spouse on the NH’s record. ^[38] The agency denied the claim in April 2011, and the claimant requested reconsideration in June 2011. The agency denied the request for reconsideration on April XX, 2012, and on June XX, 2012, the claimant submitted a written request to use the agency’s expedited appeal process (EAP). The EAP request remains pending to date.

ANALYSIS

Since February 1, 2008, New York has recognized as valid same-sex marriages entered into in other jurisdictions, including Canada. The marriage between the claimant and the NH, therefore, was a valid marriage in New York at the time of the NH’s death. Accordingly, if the claimant meets the other criteria for receipt of widow’s benefits, there would be legal support for the agency to find that she is entitled to those benefits on the NH’s record.

New York State Law Regarding Same-Sex Marriage

In New York, case law traditionally defined marriage as the voluntary union of one man and one woman as husband and wife. See Hernandez v. Robles, 855 N.E.2d 1, 6, 9-12 (N.Y. 2006) (stating that “New York’s statutory law clearly limits marriage to opposite-sex couples” and upholding that law’s constitutionality). ^[39]

However, on February 1, 2008, a New York appellate court considered a same-sex marriage entered into in Ontario, Canada in July 2004, and held that New York would recognize same-sex marriages validly entered into in other jurisdictions. Martinez v. County. of Monroe, 850 N.Y.S.2d 740, 742 (4th Dept. 2008), leave to appeal denied, 859 N.Y.S. 2d 617, 889 N.E.2d 496 (2008). ^[40] Also, in 2011, the State of New York, through Attorney General Eric , filed an amicus brief in the claimant’s case before the District Court for the Southern District of New York, which stated, “New York has long recognized as valid same-sex marriages that were solemnized under the laws of other States or nations, such as plaintiff E~ W~'s Canadian marriage to T~ .” Windsor v. U.S., 2011 WL 3754396 (S.D.N.Y. July 26, 2011) (emphasis added). Furthermore, the Supreme Court’s ruling on the claimant’s challenge to the constitutionality of DOMA noted that “New York deems [the claimant’s] Ontario marriage to be a valid one.” U.S. v. Windsor, 133 S.Ct. at 2683 (internal citation omitted).

The decision in M~ considered together with the amicus brief filed by the State of New York and the Supreme Court’s decision, all support the conclusion that since Februrary 1, 2008, New York has recognized same-sex marriages validly entered into in other jurisdictions.

Here, the parties entered into a valid same-sex marriage in Ontario, Canada on May XX, 2007, and the NH died in New York on February XX, 2009. Thus, under New York law, the claimant’s marriage would be recognized as valid since at least February 1, 2008. Accordingly, the claimant’s marriage to the NH was valid for purposes of determining the claimant’s entitlement to widow’s benefits as a surviving spouse of the NH.

CONCLUSION

The claimant’s marriage to the NH was valid under New York law.