Even if the claimant is not validly married to NH, he will be deemed to be her husband
if, under the law applied by the courts of the District of Columbia in determining
the devolution of intestate personal property, he has the “same status” as a husband
of the NH 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 Saskatchewan, Canada.
Accordingly, to determine whether Carter has the requisite status with respect to
inheritance of the NH’s intestate property, we apply Saskatchewan law.
In Saskatchewan, inheritance of intestate property is governed by the Intestate Succession
Act of 1996. See Intestate Succession Act, 1996, S.S., 1996, ch. I-13.1, as amended by S.S. 1999,
ch. 5 and S.S. 2001, ch. 51 (collectively, the ISA). The ISA defines the term “spouse”
to include individuals who “cohabited with the intestate as spouses,” as well as married
spouses, as follows:
the legally married spouse of the intestate; or
if the intestate did not have a spouse within the meaning of clause (1) or had a spouse
within the meaning of clause (1) to whom section 20 applies, a person who:
a. cohabited with the intestate as spouses continuously for a period of not less than
two years; and
b. at the time of the intestate’s death was continuing to cohabit with the intestate
or had ceased to cohabit with the intestate within the 24 months before the intestate’s
S.S., 1996, ch. I-13.1, s. 2; S.S., 2001, ch. 51, s. 6 (italics added). Thus, under
the ISA, a non-married individual who “cohabited with the intestate as spouses” may
have the same inheritance rights as a married spouse.
Although the ISA does not define the phrase “cohabited with the intestate as spouses,”
courts interpreting this phrase have held that it incorporates common law factors
used to determine whether the parties were in a “common law relationship.” See, e.g., Morin v. Leikeim,  2009 Sk. C. LEXIS 24; Yakiwchuk v. Oaks,  2003 Sk. C. LEXIS 783. The two most frequently applied sets of factors used
to determine the existence of a “common law relationship” were set out in Molodowich v. Penttinen,  17 R.F.L.2d 376, and Tanouye v. Tanouye,  117 Sask. R. 196. The factors in Molodowich include:
(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,
(d) Household maintenance, (e) Any other domestic services?
(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?
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,
(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?
What was the attitude and conduct of the parties concerning children?
Busse v. Gadd,  S.J. No. 151, 13, citing Romanchuk v. Robin,  232 Sask. R. 198, 17. In Tanouye, the Saskatchewan Court of Queen’s Bench summarized the factors to be considered
in determining the existence of a common law relationship as follows:
The authorities seem to indicate that a common law relationship or marriage requires
perhaps not all but at least a majority of the following characteristics: economic
interdependence including an intention to support; a commitment to the relationship,
express or implied, for at least an extended period of time; sharing of a common principal
residence; a common desire to make a home together and to share responsibilities in
and towards that home; where applicable, shared responsibilities of child rearing;
and a sexual relationship. As well, it appears that, superimposed on the relationship,
there should be the general recognition of family, friends, and perhaps to some extent
the larger community, that the particular man and woman appear as a “couple,” i.e.
a family unit.
Busse v. Gadd,  S.J. No. 151, 13, citing Romanchuk v. Robin,  232 Sask. R. 198, 17. Courts applying both tests have held that no one factor
is determinative and that additional factors may be relevant. See, e.g., Yakiwchuk, supra, 2003 Sk. C. LEXIS 783, 14-15.
In this case, the claimant and the NH expressed in writing their mutual intent to
enter into a permanent, marriage-like relationship with each other in August 2004.
In addition to this expression of their intent, they have lived together continuously
for many years, from June 2003 to present. Credit card records show that they have
lived together at the same address. Bank account statements show that they have held
a joint account. Witness statements show that they have visited family members together
and have introduced each other as spouses. Based on these facts, it appears that the
claimant qualifies as a non-married individual entitled to inherit a husband’s share
of the NH’s intestate property under Saskatchewan law.
The fact that the claimant and the NH knew that the claimant was legally married to
another person at the time they began living together does not affect the claimant’s
inheritance rights under Saskatchewan law. See Winik v. Wilson Estate,  181 Sask. R. 111, 21 (stating that “[t]he formation of a common law relationship
is not hindered by the existence of a subsisting marriage.”). Thus, the claimant’s
prior marriage to M~ did not preclude his entry into a common law relationship with
the NH. Accordingly, even though the claimant is not validly married to the NH, the
claimant should be deemed to be the NH’s husband on the basis that he would inherit
a spouse’s share of her personal property if she died intestate. See Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.