The claimant and the NH began living together as spouses on October XX, 1985, in Calgary, Canada. Calgary is located in the province of Alberta. The NH continues to reside in Calgary. On November XX, 2015, the claimant filed for Social Security benefits on the NH’s record as a spouse. A common-law marriage does not exist in Calgary.

The claimant’s legal term adult interdependent relationship (AIR) with the NH has the same status as a spouse of the NH under the law of Alberta, Canada, including intestate inheritance rights. Thus the agency can deem the couple married for Title II purposes.

QUESTION PRESENTED

Whether the common law union between M1~, the claimant, and M2~, the number holder (NH), in Calgary, Canada is valid for purposes of determining the claimant’s entitlement to Title II benefits as the NH’s spouse under the Social Security Act (Act)?

OPINION

The agency can deem the couple as married for Title II benefit purposes. While a common law marriage does not exist in Calgary, the claimant and NH’s union meets the elements of an AIR, which provides the claimant the same status as a spouse of the NH under the intestacy laws the NH’s domicile. Thus, the agency can deem the claimant and the NH as married for Title II purposes. Accordingly, if the claimant meets the other criteria for entitlement to spouse’s benefits, the agency should find that the claimant is entitled to spouse’s benefits on the NH’s record.

BACKGROUND

The claimant and the NH began living together as spouses on October XX, 1985, in Calgary, Canada. Calgary is located in the province of Alberta. The NH continues to reside in Calgary. On November XX, 2015, the claimant filed for Social Security benefits on the NH’s record as a spouse. You requested a legal opinion regarding whether the claimant is entitled to Title II spouse’s benefits on the record of the NH.

ANALYSIS^[1]

To be entitled to spouse’s benefits under the Social Security Act (Act), a claimant must show, among other things, that he or she is the “husband” or “wife” of an insured NH.^[2] See 42 U.S.C. §§ 402(b), (c), 416(a)(1); 20 C.F.R. § 404.330. As pertinent here, the Act provides two methods for a claimant to show that he or she is the husband or wife of an insured who is domiciled outside the United States. First, a claimant is the husband or wife of such insured if, among other things, the courts of the District of Columbia would find that the claimant was validly married to the insured at the time he or she applied for benefits. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, even if a claimant was not validly married to such insured at the time he or she applied for benefits, he or she will be deemed to be the insured’s husband or wife if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, he or she would have the “same status” as a husband or wife of the insured with respect to the taking of such property. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

The claimant bears the burden of proving that he or she is in a valid marital relationship with the insured and is therefore the insured’s spouse. See 20 C.F.R §§ 20 C.F.R. §§ 404.345, 404.704, 404.723, 404.725. In determining the claimant’s relationship as the insured’s spouse, the agency looks to the law of the state where the insured had a permanent home at the time the claimant applied for benefits. See 42 U.S.C. § 416(h)(1)(A)(i). If the insured was not domiciled in any state, the agency applies the law of the District of Columbia. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345; POMS GN 00210.006(B)(2).a.

Validity of Same-Sex Marriage Under the Law of the District of Columbia

Here, because the NH resided in Calgary, Canada at the time the claimant applied for benefits, we apply District of Columbia law to determine whether the couple was validly married. Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. SeeMcConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946). The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942). As pertinent here, the District of Columbia began recognizing as valid same-sex marriages entered into in other jurisdictions beginning on July 7, 2009. See Section 1287a of the Jury and Marriage Amendment Act of 2009, D.C. Code § 46-405.01 (“A marriage legally entered into in another jurisdiction between 2 persons of the same sex that is recognized as valid in that jurisdiction, that is not expressly prohibited . . . , and has not been deemed illegal . . . , shall be recognized as a marriage in the District.”). Accordingly, the recognition of same-sex marriages performed in other jurisdictions does not appear to violate a strong public policy of the District. Therefore, we next must examine the validity of same-sex marriage under the law of Alberta, Canada.

The Claimant has the Same Status as a Wife of the NH Under the Intestacy Laws of Alberta

If the claimant is not validly married to NH, the agency will deem the couple to be married, if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a spouse of the NH with respect to the taking of such property, if the NH were to die. See 42 U.S.C

§ 46(h)(1)(A)(ii); 20 C.F.R. § 404.345. Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). In this case, NH lives in Calgary, Canada. Since there is no indication that the claimant and NH entered into a ceremonial marriage, we will not analyze whether their marriage is valid.^[3] Instead we will look at whether their adult interdependent relationship is valid pursuant to the laws of Alberta.

Pursuant to the law of Alberta, the term common law marriage is not used. Instead, the legal term adult interdependent relationship (AIR) is used to refer to couples who are committed but do not marry. An AIR is available to both opposite and same-sex couples as long as they fulfill the legal requirements.^[4] A person is said to be a “deemed AIP^[5] ” if the person lived with the other person in a relationship of interdependence^[6] for a continuous period of not less than three years^[7] or in an interdependent relationship of some permanence if there is a child of the relationship by birth or adoption. The Adult Interrelationships Act of 2002 specifically states that a relationship of interdependence means a relationship outside marriage in which any two persons: share one another’s lives, are emotionally committed to one another; and function as an economic and domestic unit.^[8] The Act also lists the following circumstances or factors to be used in determining whether the relationship functions as an economic and domestic unit, “as may be relevant”:

(a) whether or not the persons have a conjugal relationship;

(b) the degree of exclusivity of the relationship;

(c) the conduct and habits of the persons in respect of household activities and living arrangements;

(d) the degree to which the persons hold themselves out to others as an economic and domestic unit;

(e) the degree to which the persons formalize their legal obligations, intentions and responsibilities toward one another;

(f) the extent to which direct and indirect contributions have been made by either person to the other or to their mutual well-being;

(g) the degree of financial dependence or interdependence and any arrangements for financial support between the persons;

(h) the care and support of children;

(i) the ownership, use and acquisition of property.^[9]

Additionally, as of February 1, 2012, the Wills and Succession Act establishes the rules for intestate succession in Alberta.^[10] The Act appears to grant equal status to spouses and adult interdependent partners with respect to the division of intestate property; the Act does not discriminate between same-sex or opposite-sex spouses or partners.

In the instant case, the claimant and NH would qualify as an AIR since they have lived for well over three years in an interdependent relationship as they share one another’s lives, are emotionally committed to one another and function as an economic and domestic unit. The property tax and pension statements and the fact that they have lived as a couple since 1985 serve as evidence of their intent to hold out as an economic and domestic unit. Therefore, we can treat them as an AIR. Given that their relationship constitutes an AIR, the claimant has the right to inherit property intestate from the NH pursuant to the Wills and Succession Act.

CONCLUSION

The claimant’s AIR with the NH has the same status as a spouse of the NH under the law of Alberta, Canada, including intestate inheritance rights. Thus the agency can deem the couple married for Title II purposes.

The claimant and NH allege that they have been in a common-law relationship in Ontario, Canada since April XX, 1997. Under the law of Ontario, a member of a common-law relationship does not have spousal rights of intestate inheritance from the other member. Accordingly, the agency would not deem the claimant and NH as having married based on a common-law relationship. As a result, the agency cannot entitle the claimant to spouse’s benefits on the record of the NH.

Issue

M~ (claimant) applied for spouse’s benefits on the earnings record of L~, the insured number holder (NH). You have asked if the claimant is entitled to Title II spouse’s benefits on the NH’s record based on a marriage-like relationship (common-law relationship) with the NH. The couple has been domiciled continuously in Ontario, Canada, through the date of application for spouse’s benefits.

Short Answer

No, the claimant is not entitled to Title II spouse’s benefits. Although Ontario, Canada, recognizes common-law relationships between opposite and same-sex couples, this type of relationship does not allow a member of the relationship to have the “same status” as a spouse of the other member, with respect to the taking of property, if one member were to die without a will. Therefore, the agency cannot deem the couple as married for Title II benefit purposes based on their common-law relationship.

Factual Background

The claimant and the NH have lived together since April XX, 1997, in Ontario, Canada. The claimant applied for husband’s benefits on the NH’s record on February XX, 2014. The claimant submitted evidence that he had a spousal-type relationship with the NH, that they are engaged, but have not had a ceremonial marriage.

Analysis

The Act provides that a claimant will be deemed to be the spouse of an insured domiciled outside the U.S. if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a spouse of the insured with respect to the taking of such property. In this case, the NH resides in Manitoba, Canada. Manitoba’s Intestate Succession Act provides for equal treatment of legally married spouses and common-law partners. The claimant has the same status as a spouse of the NH for purposes of intestate inheritance, and qualifies as the NH’s spouse on that basis.

Issue

D~ (claimant) applied for spouse’s insurance benefits on the earnings record of K~, the insured number holder (NH). The claimant alleges they have lived together in a common law relationship in Manitoba, Canada, since August 1990. Is the claimant the NH’s spouse for purposes of determining her entitlement to spouse’s insurance benefits under title II of the Social Security Act?

Short Answer

Yes. The claimant has the same status as a legally married spouse of the NH for purposes of intestate inheritance, and qualifies as the NH’s spouse on that basis.

Factual Background

The claimant, a female, and the NH, a male, allege that they have lived together continuously in a common law relationship in Manitoba, Canada since August 1990.

The claimant and the NH submitted documentary evidence supporting the existence of a relationship between them. The documents show that the claimant and the NH received mail, addressed to them jointly, at the same address. They also show that the claimant and the NH filed joint tax returns, had a joint bank account, purchased a home together, and took out homeowner’s insurance jointly. A pension application completed by the claimant lists her marital status to the NH as “common-law,” and benefits were made payable to the NH upon the claimant’s death.

Statements submitted by the claimant and the NH indicate that they began living together “in a husband and wife relationship” in August 1990. Responding to a question asking if they had an understanding as to their relationship when they began living together, both the claimant and the NH stated “to live together as husband and wife common law,” and they represented that this understanding had not changed. Regarding how long they planned to live together, both the claimant and the NH stated “as long as possible . . . til death do us part.” In addition, both the claimant and the NH stated that they introduced the other to relatives, friends, neighbors, business acquaintances, and others, as “my partner,” “common law wife,” “common law husband,” “wife,” or “husband.” A statement completed by the NH’s son likewise states that the claimant and the NH referred to each other as husband and wife “always, everywhere.”

Discussion^[19]

To be entitled to spouse’s insurance benefits under the Social Security Act (Act), a claimant must show, among other things, that he or she is the “spouse” of an insured. See Act § 202(f)(b), (c). As pertinent here, the Act provides that a claimant will be deemed to be the spouse of an insured domiciled outside the U.S. if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a spouse of the insured with respect to the taking of such property. See Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). Here, the NH is domiciled in Manitoba, Canada. Accordingly, to determine whether the claimant has the requisite status with respect to inheritance of the NH’s intestate property, we apply the law of Manitoba, Canada.

Manitoba’s Intestate Succession Act governs intestacy rights in Manitoba. See Intestate Succession Act, C.C. S.M. c. 185, http://web2.gov.mb.ca/laws/statutes/ccsm/i085e.php (last visited Oct. 8, 2015). The Act provides for equal treatment of legally married spouses and “common-law partners.” See id. §§ 2(1)-3(4). The Act defines a “common law partner” of an intestate as:

(a) a person who, with the intestate, registered a common-law relationship under section 13.1 of The Vital Statistics Act, or

(b) subject to subsection 11(2), a person who, not being married to the intestate, cohabited with him or her in a conjugal relationship, commencing either before or after the coming into force of this definition,

(i) for a period of at least three years, or

(ii) for a period of at least one year and they are together the parents of a child.

See id. § 1(1). Although the Act does not define the phrase “cohabited with him or her in a conjugal relationship,” courts interpreting this phrase have held that it incorporates the common law factors set out in Molodowich v. Penttinen (1980), 17 R.F.L. 5th 352 (Ont. S.C.J.), available at http://www.canlii.org/en/on/onsc/doc/1980/1980canlii1537/1980canlii1537.html (last visited Oct. 8, 2015), for determining whether an individual qualifies as a common law partner. The Molodowich factors include:

(1) Shelter: (a) Did the parties live under the same roof? (b) What were the sleeping arrangements? (c) Did anyone else occupy or share the available accommodation?

(2) Sexual and Personal Behavior: (a) Did the parties have sexual relations? If not, why not? (b) Did they maintain an attitude of fidelity? (c) What were their feelings towards each other? (d) Did they communicate on a personal level? (e) Did they eat meals together? (f) What, if anything, did they do to assist each other with problems or during illness? (g) Did they buy gifts for each other on special occasions?

(3) Services: What was the conduct and habit of the parties in relation to: (a) Preparation of meals, (b) Washing and mending clothes, (c) Shopping, (d) Household maintenance, (e) Any other domestic services?

(4) Social: (a) Did they participate together or separately in neighbourhood and community activities? (b) What was the relationship and conduct of each of them towards the members of their respective families and how did such families behave towards the parties?

(5) Societal: What was the attitude and conduct of the community towards each of them and as a couple?

(6) Support (economic): (a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)? (b) What were the arrangements concerning the acquisition and ownership of property? (c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

(7) Children: What was the attitude and conduct of the parties concerning children?

Molodowich, 17 R.F.L. 5th 352.

In this case, the claimant and the NH submitted documentary evidence showing that they received mail, addressed to them jointly, at the same address; filed joint tax returns; had a joint bank account; and purchased a home together, taking out homeowner’s insurance jointly. A pension application completed by the claimant lists her marital status to the NH as “common-law,” and benefits were made payable to the NH upon the claimant’s death. Statements submitted by the claimant and the NH indicate that they began living together “in a husband and wife relationship” in August 1990, understood themselves “to live together as husband and wife common law,” and expected their relationship to last “as long as possible . . . til death do us part.” Both the claimant and the NH stated that they introduced the other to relatives, friends, neighbors, business acquaintances, and others, as “my partner,” “common law wife,” “common law husband,” “wife,” or “husband.” A statement completed by the NH’s son likewise states that the claimant and the NH referred to each other as husband and wife “always, everywhere.” Based on these facts, it appears that the claimant qualifies as the NH’s common law partner under Manitoba’s Intestate Succession Act, and she would therefore have the same status as a legally married spouse of the NH with regard to the taking of the NH’s intestate property.

Conclusion

The claimant has the same status as a spouse of the NH for purposes of intestate inheritance, and qualifies as the NH’s spouse on that basis.

In British Colombia, Canada, couples in marriage-like-relationships for longer than two years can be considered to be in a common-law relationship. These marriage-like-relationships have the same status as spouse for intestate inheritance. Since the claimant is in a marriage-like-relationship with the number holder, the agency can deem the claimant entitled for Title II spouse’s benefits.

QUESTION PRESENTED

Whether a couple residing in British Columbia, Canada, can satisfy the relationship requirement for purposes of spouse’s benefits based on a marriage-like relationship?

SHORT ANSWER

Under the law of British Columbia, a partner of a NH in a “marriage-like relationship” for longer than two years could have the “same status” as a spouse of the NH, for intestate inheritance purposes. Therefore, if the agency is satisfied that the evidence presented shows that a couple has lived in a marriage-like relationship for longer than two years, the agency can deem a couple as married for social security purposes.

SUMMARY OF EVIDENCE

The claimant, D~, filed for spouse’s benefits on the record of the NH, J~. As part of the claim, the claimant and the NH each completed a Statement of Marital Relationship. According to the claimant and the NH, they were in a marriage-like relationship since June 1992. They lived together in British Columbia, Canada since 1992. They never married, but they considered themselves in a “common law relationship.” On the claimant’s and NH’s separate Statements of Marital Relationship, each allege that they have a joint bank account, a shared mortgage, and filed joint tax-returns.^[20] In addition, two brothers of the couple submitted statements saying they considered the couple married since 1992.

ANALYSIS

I. Social Security Law

To be entitled to spouse’s benefits under the Social Security Act (Act), a claimant must show, among other things, that he or she is the “husband” or “wife” of an insured NH.^[21] See 42 U.S.C. §§ 402(b), (c), 416(a)(1); 20 C.F.R. § 404.330. As pertinent here, the Act provides two methods for a claimant to show that he or she is the husband or wife of an insured who is domiciled outside the United States. First, a claimant is the husband or wife of such insured if, among other things, the courts of the District of Columbia would find that the claimant was validly married to the insured at the time he or she applied for benefits. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, even if a claimant was not validly married to such insured at the time he or she applied for benefits, he or she will be deemed to be the insured’s husband or wife if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, he or she would have the “same status” as a husband or wife of the insured with respect to the taking of such property. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

Here, the NH and claimant allege that they have a common-law relationship, not a ceremonial of common-law marriage. Therefore, we do not have to determine whether a valid marriage exists. Instead, we must examine whether the claimant can be deemed to be the insured’s wife in accordance with the Act. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

Validity of Relationship Under the Law of the District of Columbia

Because the NH resided in British Columbia, Canada, at the time the claimant applied for benefits, we apply District of Columbia law to determine whether the claimant may be considered (deemed) to be the NH’s wife. SSA will deem the claimant to be the NH’s wife, if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a widower of the NH with respect to the taking of such property, if the NH were to die. See § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345. Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). As previously noted, the claimant and the NH lived together in British Columbia, Canada. Accordingly, to determine whether this relationship would allow the claimant to have the requisite status as a spouse with respect to inheritance of the NH’s intestate property, we apply the law of British Columbia, Canada.^[22]

British Columbia’s Estate Administration Act, and the subsequent Wills, Estates, and Succession Act, which came into force on March 31, 2014, provide the rules for intestate succession.^[23] The Estate Administration Act’s definition of spouse included “common law spouse,” which meant either:

(a) A person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or

(b) a person who has lived and cohabitated with another person in a marriage-like relationship, for a period of at least two years immediately before the person’s death.

Estate Administration Act, S.B.C. 1996, c. 122, pt. 1, available at

http://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-122/104764/rsbc-1996-c-122.html#Part_1_General_498. The Wills, Estates and Succession Act does not refer to “common law spouse,” and instead states, “2 persons are spouses of each other for purposes of this Act if they were both alive immediately before a relevant time and (a) they were married to each other, or (b) they had lived with each other in a marriage-like relationship for at least 2 years.” Wills, Estates and Succession Act, S.B.C. 2009, c. 13, pt. 2, available at

http://www.bclaws.ca/civix/document/id/complete/statreg/09013_01#section2.

The expression “marriage-like relationship” is found in a number of British Columbia’s statutes that deal with the rights and obligations of unmarried couples. British Columbia’s Court of Appeal has held that the expression should be interpreted the same across statutes in “all cases where it is used to describe the status of two persons who have chosen to live together in a certain way.” Austin v. Goerz (2007) 74 B.C.L.R. 4th 39, para. 32 (Can. B.C. C.A.), available at https://www.canlii.org/en/bc/bcca/doc/2007/2007bcca586/2007bcca586.html?searchUrlHash=AAAAAQA0bWFycmlhZ2UtbGlrZSByZWxhdGlvbnNoaXAgY29tbW9uIGxhdyBHb3N0bGluIFRha2FjcwAAAAAB.

Thus it appears that under the law of British Columbia, a partner of a NH in a “marriage-like relationship” would have the “same status” as a widower of the NH with respect to the inheritance of the NH’s intestate personal property. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

The legal test for determining whether a particular relationship is “marriage-like” is whether it was the parties’ subjective intention to be in a “marriage-like relationship.” Gostlin v. Kergin (1986), 3 B.C.L.R. 2d 264, page 5 (Can. B.C. C.A.), available at https://www.canlii.org/en/bc/bcca/doc/1986/1986canlii164/1986canlii164.html. In Gostlin, the Court stated:

If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been “Yes”, then they are living together as husband and wife. If the answer would have been “No”, then they may be living together, but not as husband and wife.

Id. at 5. However, the Court notes that sometimes ascertaining intention can prove difficult in particular circumstances, in which case objective factors can be relied upon:

Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependent on the other, in accordance with a mutual arrangement?

Id. at 6.

The Court enunciated additional factors indicating a “marriage-like relationship” in Takacs v. Gallo (1998), 48 B.C.L.R. 3d 265 (Can. B.C. C.A.), available at http://www.canlii.org/en/bc/bcca/doc/1998/1998canlii6429/1998canlii6429.html. In that case, the Court held that courts must focus first on the intentions of the parties to live in a marriage-like relationship, using objective factors to divine those subjective intentions. Id. para. 53. The Court noted that although the parties may not explicitly acknowledge that a marriage-like relationship exists, “conduct speaks louder than words.” Id. para. 40.

Objective factors that may be relevant in determining the parties’ intentions are seldom determinative in and of themselves; many people who live together, and meet many of these objective criteria, do not actually intend or enter the kind of psychological and emotional union generally associated with marriage. Id. para. 55. Therefore, courts must recognize the uniqueness of each relationship and apply a flexible approach when considering the various objective criteria provided in the authorities. J.J.G. v. K.M.A. (2009), 71 R.F.L 6th 349, para. 37 (Can. B.C. S.C.), available at https://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc1056/2009bcsc1056.html.

II. The Claimant’s Application

The claimant and the NH stated that they had a marriage-like relationship that lasted for much longer than the two-year period required under the law. They lived together since 1992 and held themselves out as husband and wife. The claimant and NH each stated that they comingled finances, jointly owned real property, and filed taxes together. However, it does not appear that SSA requested any documents to support these allegations. In addition, a brother of the claimant, and a brother of the NH each submitted a Statement Regarding Marriage. Both brothers stated that they considered the couple husband and wife. In addition, M~, stated that the couple co-owns their homes and share finances. He also stated that he sees the couple three or four times a year, at family gatherings and holidays. M2~ stated that he always referred to claimant as his sister-in-law. Therefore, if the agency is satisfied that the statements of the claimant, the NH and the brothers are sufficient (without additional supporting documentation such as bank, mortgage or tax records), we think this evidence could show that this couple had a subjective intention to be in a marriage-like relationship and therefore the agency can find the couple in a common-law relationship under the law British Columbia. Accordingly, the couple could be deemed married under the Act, and the claimant would be considered the NH’s wife for benefit purposes.

CONCLUSION

Under the laws of British Columbia, Canada, a couple in a marriage-like relationship would be considered in a common-law relationship and thus could inherit as spouses for purposes of intestate succession. Thus, the agency could deem such couple as married for social security purposes under title II of the Act.

Saskatchewan, Canada recognizes common law marriages when solemnized by a formal ceremony. C~ and A~ did not have their relationship solemnized by a formal ceremony. However, under Saskatchewan’s Intestate Succession Act of 1996 C~ has the same inheritance rights as a married spouse. Therefore, SSA can deem C~ is to be A~ husband for entitlement to Title II husband’s insurance benefits.

C~ (claimant) applied for husband’s insurance benefits on the earnings record of A~, the insured number holder (NH). The claimant and the NH allege that they entered into a common law spousal relationship in Saskatchewan, Canada. Both were aware that the claimant was married to another woman at the beginning of their relationship. After that marriage was terminated by divorce, they allege that they continued to live together as common law spouses. However, they never participated in a ceremony solemnizing their relationship as a marriage. Is the claimant the NH’s husband for purposes of determining his entitlement to husband’s insurance benefits under title II of the Social Security Act?

Yes. Although the claimant’s relationship with the NH would not be recognized as a valid marriage under Saskatchewan law, the claimant has the same status as a husband of the NH under Saskatchewan intestacy law and should be deemed to be her husband on that basis.

The clamant and the NH allege that they have lived together in a common law relationship in Saskatchewan, Canada since June 2003. At the time they began living together, both parties were aware that the claimant had separated from but was still married to another woman, M~.

The claimant and the NH executed a written “Interspousal Contract” on August XX, 2004. The preamble of the Interspousal Contract states that the claimant and the NH “have lived in a common law spousal relationship since approximately June 2003,” and that they “may enter into a marriage relationship in the future.”

The claimant’s marriage to M~ was terminated by divorce on September XX, 2005. Thereafter, the claimant and the NH allege that they continued to live together in a common law relationship. However, they acknowledge that they never participated in any ceremony solemnizing their relationship as a marriage.

On July XX, 2008, the claimant applied for husband’s insurance benefits on the NH’s earnings record. In support of the claimant’s application, the claimant and the NH submitted SSA-754 (“Statement of Marital Relationship”) forms on August XX, 2008. In the forms, they indicated that they have “liv[ed] together in a husband and wife relationship” in Saskatchewan, Canada from June 2003 to present. With respect to how long they understood they would live together, the claimant stated it was their understanding they would “remain together forever.” The NH stated “it is our plans to remain together as long as we both shall live.” They also stated that they believed that living together provided them with the same legal rights as married individuals. Both explained that “as per the Canadian laws, after 1 year together, you have the same legal rights as a legally married couple.” They also stated that they introduced each other to relatives, friends, neighbors, and business acquaintances as “my partner or spouse.”

The claimant and the NH also submitted business records and other documentary evidence in support of the claimant’s application for benefits. Credit card statements were mailed to the claimant and the NH at the same address. Bank account statements show that they held a joint account. The claimant’s 2007 tax return identified his marital status as “living common-law” and his “common-law partner” as the NH. In tax forms dated 2006 through 2008, the NH identified her marital status as “living common-law” and the claimant as her “spouse.” In connection with a pension claim with the Saskatchewan Financial Services Commission, the claimant signed a document affirming that he was the NH’s “spouse” on January XX, 2005. In an application for retirement benefits dated May XX, 2005, submitted to the Saskatchewan Healthcare Employees’ Pension Plan, the NH stated that the claimant was her “spouse.” In health insurance documents dated October 2004, the NH identified the claimant as her “spouse.”

The file also contains witness statements. C1~, the claimant’s sister, stated that the claimant and the NH have lived together since June 2003, that she has heard them refer to each other has husband and wife, that they have stated that they are married, and that she meets them six times per year. P~, the NH’s sister, also stated that they have lived together, “sharing the same bedroom,” since June 2003. P~ said they she meets them at least once per year and speaks frequently with them by telephone.

To be entitled to husband’s insurance benefits under the Social Security Act (Act), a claimant must show, among other things, that he is the “husband” of an insured. See Act § 202(c)(1). As pertinent here, the Act provides two methods for a claimant to show that he is the husband of an insured who is domiciled outside the United States. First, a claimant is the husband of such insured if the courts of the District of Columbia would find that the claimant was validly married to the insured at the time he applied for benefits. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, even if a claimant was not validly married to such insured at the time he applied for benefits, he will be deemed to be the insured’s husband if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, he would have the “same status” as a husband of the insured with respect to the taking of such property. See Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

The claimant should be deemed to be the NH’s husband for purposes of determining his entitlement to husband’s insurance benefits. The Act provides two methods for establishing a claimant’s status as an insured’s husband. First, a claimant is an insured’s husband if he was validly married to the insured at the time he applied for benefits. Second, even if a claimant was not validly married to an insured, he will be deemed to be the insured’s husband if he would inherit a husband’s share of the insured’s personal property if she died intestate. Although the claimant’s relationship with the NH would not be recognized as a valid marriage under Saskatchewan law, the claimant has the same status as a husband of the NH under Saskatchewan intestacy law and should be deemed to be her husband on that basis.

Quebec, Canada does not recognize common law marriage. Although Quebec allows this type of relationship, called a “de facto union” or “conjoints de fait”, it does not allow the claimant the same status as a widow of the number holder (NH) under the intestacy law of Quebec. Therefore, the agency cannot entitle the claimant to Title II widow’s insurance benefits based on a common-law marriage.

QUESTION PRESENTED

M~ (the claimant) applied for widow’s insurance benefits on the earnings record of T~, the deceased insured number holder (the NH).  You have asked if the claimant is entitled to Title II widow’s benefits based on a common-law marriage with the NH.

OPINION

No, the claimant is not entitled to Title II widow’s benefits based on a common-law marriage to the NH.  Québec, Canada, does not recognize common-law marriage, i.e., non-ceremonial marriage.  In addition, the agency cannot deem the couple as married for Title II benefit purposes based on some type of non-marital legal relationship.  Québec recognizes civil unions; however the claimant does not allege that she entered into a civil union.  Although the law of Québec does allow for two people living together to be in a relationship called a “de facto union” or “conjoints de fait,” this type of relationship does not allow the claimant the same status as a widow of the NH under the intestacy law of Québec. Therefore, the agency cannot find a deemed marriage based on the time period during which the claimant and NH lived together before their ceremonial marriage.

BACKGROUND

The claimant and the NH lived together from January 1990, until the NH’s death on October 1998, in Québec.  The claimant submitted evidence that she had a spousal-type relationship with the NH and that they began living together in 1990 in Québec. The couple continued to live together in San Francisco, California, and in Maui, Hawaii.  The couple married in Hawaii on February 1998.  They moved back to Québec, where the NH died on October 1998. 

ANALYSIS ^[28]

Generally, an individual is entitled to widow’s or widower’s benefits if he or she (1) is the insured’s widow or widower and the marital relationship lasted at least nine months before the insured died; (2) files an application; (3) is at least 60 years old; (4) is not entitled to an old-age benefit that is equal to or larger than the insured person’s primary insurance amount; and (5) is not currently married.  Sections 206(e), (f), 216(c), (g) of the Act; 20 C.F.R. § 404.335.

Here, because the NH resided in Canada at the time he died, we apply District of Columbia law to determine whether they were validly married.  Section 216(h)(1)(A)(i) of the Act; 20 C.F.R.

§ 404.345.  Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into.  See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946).  The only exception is when the marriage is in violation of strong public policy of the District of Columbia.  Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942).

Québec Does Not Recognize Common-law Marriage

The claimant entered into a valid ceremonial marriage with the NH in Hawaii on February XX, 1998.  However, the NH died on October 1998.  Under the law of the District of Columbia, the claimant would be recognized as the insured’s widow.  However, under the Act, the marriage did not last at least nine months before the insured died as required under sections 216(c), 216(g) of the Act; 20 C.F.R. § 404.335.  Therefore, the claimant is not entitled to Title II widow’s benefits on the record of the NH, based on their ceremonial marriage.  

The claimant alleges that she was in a common-law marriage with the NH based on the eight years they lived together.  However, Québec does not recognize common-law marriage.  Further, California and Hawaii also do not recognize common-law marriage.  See POMS GN 00305.075B.  Thus, claimant is not entitled to Title II widow’s benefits on the record of the NH, based on a common-law marriage. 

The Claimant Does Not Have the Same Status as a Wife of the NH Under the Intestacy Law of Québec Based on a Legal Non-Marital Relationship

If the claimant cannot be entitled to widow’s benefits based on a marriage to the NH, the agency may deem the claimant to have been married to the NH, if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a widow of the NH with respect to the taking of such property, if the NH were to die.  See § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.  Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile.  Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)).  As previously noted, the NH died domiciled in Québec.  Accordingly, to determine whether the claimant would have the requisite status as a spouse with respect to inheritance of the NH’s intestate property, we apply the law of Québec. 

Québec recognizes marriages, civil unions,[^[29] 2] and de facto unions (conjoints de fait ),[^[30] 3] all of which are open to couples who are in an opposite or same-sex relationship.  De facto unions exist when two people live together as a couple without being married or in a civil union.^[31]   Here, the claimant does not allege (or present evidence) that she was in a civil union with the NH.  However, the claimant alleges that she and the NH had a common-law marriage because they lived together from January 1990, until the NH’s death on October XX, 1998.  As explained above, Québec law does not recognize common-law marriage.  Instead, Québec law would recognize the relationship between the claimant and NH as a de facto union (conjoints de fait). According to Justice Québec, the website of Québec’s Department of Justice:

Québec lawmakers, respecting the freedom of choice of couples living in a de facto union, have deliberately chosen not to extend to de facto couples the same rights and responsibilities that married or civil union couples have under the Civil Code of Québec, regardless of the number of years of cohabitation.^[32]

Thus, under the Civil Code of Québec, a member of a de facto union does not have spousal rights of intestate inheritance from the other member.  Accordingly, the agency would not deem the claimant and NH as having married based on a de facto union.  As a result, the agency cannot entitle the claimant to widow’s benefits on the record of the NH. 

CONCLUSION

Common law marriage is not recognized in Québec.  Under the law of Québec, the relationship that existed between the claimant and NH prior to their marriage would be recognized as a de facto union. But under the Civil Code of Québec, a member of a de facto union does not have spousal rights of intestate inheritance from the other member.  Accordingly, the agency would not deem a couple who had been in a de facto union as married. Thus the agency cannot entitle the claimant to widow’s benefits on the record of the NH.