TN 5 (08-17)

PR 05805.041 Oregon

A. PR 17-101 Eligibility for Widow’s Benefits Based upon 2004 Oregon Marriage

Date: June 15, 2017

1. Syllabus

The number holder (NH) and Claimant were married in Oregon in March 2004. The NH and Claimant were legally married in Washington in October 2013. The NH passed away in February 2014, less than nine months after her Washington marriage to Claimant. The couple were domiciled in Washington at the time of the NH’s death. Because NH died less than nine months after her Washington marriage to Claimant, the Washington marriage does not satisfy the durational requirement. A marriage valid in the jurisdiction where contracted and consummated is a valid marriage in the State of Washington. Therefore, we must determine if the 2004 Oregon marriage would be considered valid in Oregon. At the time of the marriage between Claimant and the NH, Oregon law did not expressly provide for same-sex marriages. However, marriage licenses were issued to same-sex couples in 2004. The evidence indicates that Claimant and NH satisfied the required marriage elements of the State of Oregon at the time of the marriage. Claimant and NH obtained a marriage license and participated in a ceremony that was solemnized in the presence of at least two witnesses. Under Obergefell and Harper, we believe the marriage was lawful under the laws of the State of Oregon. Accordingly, the agency finds that the Claimant’s marriage to NH in March 2004, in Oregon was valid and that Washington would recognize it. The Claimant is the NH’s widow for Title II benefit purposes.

2. Opinion

QUESTION PRESENTED

Is R~ (Claimant) entitled to widow’s benefits on the record of the deceased number holder (NH), B~, based on a March XX, 2004 marriage in M~ County, Oregon?

BRIEF ANSWER

Yes. We believe Claimant is NH’s widow because Washington would consider her 2004 Oregon marriage to the NH valid.

SUMMARY OF FACTS

Claimant and NH, a same-sex couple, were in a relationship since at least the 1990s. In Claimant’s will, dated March XX, 1990, Claimant bequeathed all of her property, including her house, to NH if she survived Claimant. Subsequently, in a quitclaim deed recorded on February XX, 1992, in the real property records of K County, Washington, Claimant quitclaimed real property to herself and NH, as joint tenants with rights of survivorship, in consideration of “love and affection.”

Claimant and NH obtained a marriage license in M~ County, Oregon, on March XX, 2004, as certified by a marriage certificate. The marriage certificate further shows that a minister married Claimant and NH in the presence of two witnesses on March XX, 2004.

The couple legally married in Washington State on October XX, 2013. NH passed away on February XX 2014, less than nine months after her Washington marriage to Claimant. The couple were domiciled in Washington at NH’s death. Claimant has applied for widow’s benefits on NH’s record.

ANALYSIS

A. Federal Law

To be entitled to widow’s or widower’s benefits under Title II of the Social Security Act (Act), a claimant must establish that she or he is the widow or widower of an individual entitled to old-age or disability insurance benefits and that the relationship has lasted at least one year. 42 U.S.C. §§ 402(e),(f), 416(c),(g); 20 C.F.R. § 404.335. The Social Security Administration (SSA) will find a claimant to be the widow or widower of an insured individual if the courts of the State in which the insured individual was domiciled at the time of his or her death would find that the claimant was validly married to the insured individual when the death occurred. 42 U.S.C. § 416(h)(1)(A)(i). In this case, at the time of death, the NH was domiciled in Washington State. Because NH died less than nine months after her Washington marriage to Claimant, the Washington marriage does not satisfy the durational requirement of 42 U.S.C. § 416(c). Claimant has not alleged any exception to the durational requirement, and it does not appear that any such exception applies. Thus, we must examine whether Washington would recognize the 2004 Oregon marriage.

B. State Law

A marriage valid in the jurisdiction where contracted and consummated is a valid marriage in the State of Washington. In re Warren, 40 Wash.2d 342 (1952). Therefore, we must determine if the 2004 Oregon marriage would be considered valid in Oregon.

At the time of the marriage between Claimant and NH, Oregon law did not expressly provide for same-sex marriages. However, the Chair of the M~ County Board of Commissioners ordered the Records Management Division of M~ County to issue marriage licenses to same-sex couples in 2004. Pursuant to those licenses, approximately 3,000 same-sex couples participated in individual marriage ceremonies. Claimant and NH participated in such a ceremony. However, at the governor’s direction, the state registrar refused to register documentation of those marriages on the ground that same-sex marriages did not comport with state law.

Following suit by a number of plaintiffs, including M~ County and same-sex couples, the case was decided by the Oregon Supreme Court. Li v. State, 338 Or. 376, 382 (2005), abrogated by Obergefell v. Hodges, 135 S. Ct. 2584 (2015). The Li court held that the marriage licenses were void at the time of issuance because the County did not have authority to issue them under State law. Li, 338 Or. at 397-98. The court did not consider whether State law violated the United States Constitution. Id. at 391, n.11.

That latter question was answered by the United States Supreme Court in 2015 in Obergefell, 135 S.Ct. at 2604-05. In Obergefell the Supreme Court held State laws invalid to the extent they exclude same-sex couples from marriage on the same terms and conditions as opposite-sex couples. Pursuant to Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 94-98 (1993), SSA should give Obergefell full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate Obergefell. As a result, SSA will consider State-law same-sex-marriage bans, whether based on State constitutional or statutory provisions or case law, void and ineffective. Accordingly, under Obergefell, the Oregon State laws in effect at the time Claimant and NH were married were unconstitutional.

Likewise, the facts of Obergefell itself indicate that it applies retroactively. The named plaintiff in Obergefell, J~, traveled from Ohio to Maryland to marry his partner, J~, three months before J died. Obergefell, 135 S. Ct. at 2594. J~ challenged Ohio’s refusal to list him as the surviving spouse on J death certificate. Id. at 2594-95. As a result of the Court’s decision, Ohio was compelled to posthumously recognize J~’s marriage on the death certificate, even though his spouse had been deceased for two years at the time of the decision and even though Ohio’s State laws did not recognize same-sex marriage at the time of marriage or death. Id. at 2607-08.

The same outcome should be reached here. The evidence indicates that Claimant and NH satisfied the required marriage elements of the State of Oregon at the time of the marriage. Claimant and NH obtained a marriage license. Or. Rev. St. 106.041 (1999 Oregon Laws Ch. 80 (S.B. 29)). Further, Claimant and NH participated in a ceremony that was solemnized in the presence of at least two witnesses. Or. Rev. St. 106.150 (2001 Oregon Laws Ch. 501 (S.B. 704)); Or. Rev. St. 106.170 (2001 Oregon Laws Ch. 501 (S.B. 704)). While the county clerk may not have maintained records relating to the marriage in the county records and while the State Registrar refused to register documentation of the marriage, this is not the fault of Claimant and NH. Instead, it is the result of the State’s unconstitutional law.

Accordingly, under Obergefell and Harper, we believe the marriage was lawful under the laws of the State of Oregon and thus, SSA should find that the marriage would be recognized as lawful under the laws of Washington, where the NH was domiciled at the time of her death.

CONCLUSION

The agency will not apply unconstitutional State laws prohibiting same-sex marriage. Accordingly, the agency can find that Claimant’s marriage to NH on March XX, 2004, in Oregon was valid and that Washington would recognize it. Accordingly, the agency can find Claimant to be NH’s widow for Title II benefit purposes.


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PR 05805.041 - Oregon - 08/14/2017
Batch run: 08/14/2017
Rev:08/14/2017