You asked whether Claimant and Number Holder (NH), who entered into a marriage in
Alberta, Canada, on September XX, 2009, are validly married for determining Claimant’s
entitlement to auxiliary spousal benefits on NH’s record. The couple currently resides
Yes. The marriage between Claimant and NH is considered valid under the Social Security
SUMMARY OF EVIDENCE
In November 2013, Claimant filed an application for auxiliary spouse benefits on NH’s
account. Claimant submitted a marriage certificate issued by the Director of Vital
Statistics in Alberta, Canada. The certificate shows that Claimant and NH married
each other on September XX, 2009 in C~, Canada. The certificate also reflects that
J~ was a resident of L~ J~, California and R~ was a resident of C~, Canada at the
time of their marriage. The K~ M~, California field office indicated that the couple
currently resides in L~ J~, California.
A claimant is entitled to spousal benefits under Title II of the Act if, among other
things, he or she is the spouse of an insured individual who is entitled to old-age
or disability benefits.  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 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. See Act § 216(h)(1)(A)(i); POMS GN 00210.006.B.1. Our specific inquiry is whether the
Canadian same-sex marriage between Claimant and NH is valid under California law.
Effective March 8, 2000, California amended its Family Code to provide that a marriage
is only valid between a man and a woman. Cal. Fam. Code § 308.5. However, in May 2008,
the California Supreme Court held that same-sex couples had the right to marry. In
Re Marriage Cases, 43 Cal.4th 183, 183 P.3d 384 (Cal. 2008). In November 2008, California voters passed
Proposition 8, which amended the California Constitution to provide that “[o]nly marriage
between a man and a woman is valid or recognized in California.” Cal. Const. Art.
I, § 7.5; Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 927 (N.D. Cal. 2010). On August 4, 2010, the District Court
for the Northern District of California held that Proposition 8 was unconstitutional
under both the Due Process and Equal Protection Clauses of the United States Constitution.
Id. at 1004. However, the Ninth Circuit granted a stay on August 16, 2010, pending resolution
of an appeal. See Perry v. Schwarzenegger, No. 10-16696, 2010 WL 3212786 (9th Cir. Aug. 16, 2010). Upon review, the Ninth Circuit
held that the people of California violated the Equal Protection Clause by “using
their initiative power to target a minority group and withdraw a right that it possessed,
without a legitimate reason for doing so,” and that Proposition 8 was unconstitutional
on this basis. Perry v. Brown, 671 F.3d 1052, 1096 (9th Cir. 2012). On June 26, 2013, the United States Supreme
Court held that the proponents of Proposition 8 did not have standing to appeal, upholding
the district court’s order declaring the Proposition unconstitutional. See Hollingsworth v. Perry, 133 S.Ct. 2652 (2013).
On June 28, 2013, the Ninth Circuit dissolved its stay in Perry, and same-sex marriages in California once again became legal. Perry v. Brown, 725 F.3d 968 (9th Cir. 2013); see also Ruling by the U.S. Supreme Court Regarding Same-Sex Marriages, Cal. Dept. of Pub.
Health (June 28, 2013) (State Registrar’s Message to County Clerks), available at
 California also recognizes same-sex marriages from other jurisdictions. California
Family Code § 308(a) provides that a marriage contracted outside of California, and
valid by the laws of the jurisdiction where contracted, would be valid in California.
Cal. Fam. Code § 308(a). However, California Family Code § 308(b) provides that same-sex
marriages contracted outside of California are only considered valid within California
if that marriage was contracted prior to November 5, 2008, the date Proposition 8
was enacted.  Cal. Fam. Code § 308(b). On July 7, 2014, the California legislature repealed California
Family Code Section 308(b). See 2014 Cal. Legis. Serv. Ch. 82 (S.B. 1306) (providing, “The bill would also delete
the limitation on the validity of marriages contracted outside this state between
2 persons of the same sex.”) (effective Jan. 1, 2015).
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.). Thus, same-sex marriage was legal in Alberta, Canada, as of July 20, 2005.
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.
Pursuant to California Family Code § 308(a), California will recognize a same-sex
marriage validly entered into outside of California. See Cal. Fam. Code § 308(a). As discussed, although section 308(b) provided that the
out-of-state same-sex marriage must have occurred prior to November 5, 2008, California
passed legislation on July 7, 2014, repealing section 308(b) from the Family Code.
 Thus, the only outstanding issue is whether the couple’s marriage was valid under
Here, Claimant and NH were married on September XX, 2009 in Alberta, Canada. At that
time, same-sex marriages were legal in Canada pursuant to the Civil Marriage Act.
Moreover, the 2013 Amendment of the Civil Marriage Act applies retroactively to extend
same-sex marriage rights to non-residents. See Civil Marriage Act, S.C. 2013, c. 30, pt. 1, § 5. Therefore, it was immaterial that
NH was not a resident of Canada at the time of his marriage to Claimant, and the marriage
between NH and Claimant was valid under Canadian law.
California 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, California would also recognize it as