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?
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 Kaslo, 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. In addition, two brothers of the couple submitted statements saying they considered
the couple married since 1992.
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. 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,
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. 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
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
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.
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.