BASIC (09-14)

PR 05825.023 Maryland

A. PR 14-118 D~ – Entitlement to Lump Sum Death Payment on the Account of Number Holder L~ – Validity of Same-Sex Marriage Performed in Ontario, Canada Under Maryland Law

DATE: June 17, 2014

1. SYLLABUS

On August XX, 2004, the claimant and the number holder (NH) entered into a same-sex marriage in Ontario, Canada. Because same-sex marriages had been legal in Ontario since June 10, 2003, more than a year before the claimant and the NH got married, Maryland would recognize their marriage as valid at the time of the NH’s death for purposes of determining the claimant’s status as the NH’s surviving spouse.

2. OPINION

QUESTION PRESENTED

Is D~, (claimant), the surviving spouse of ~, the number holder (NH), where the couple entered into a same-sex marriage in Ontario, Canada?

OPINION

Yes. The claimant is the surviving spouse of the NH for purposes of disabled widower’s benefits.

BACKGROUND1

The claimant and the NH were married on August XX, 2004, in Toronto, Ontario, Canada. No actions were taken to terminate the marriage prior to the NH’s death. The NH was living in Maryland on March XX, 2012, the date of his death.

In May 2014, the claimant applied for disabled widower’s benefits on the NH’s account as the NH’s surviving spouse. You requested a legal opinion as to whether the claimant is the NH’s surviving spouse.

ANALYSIS

To be entitled to widow’s or widower’s insurance benefits under the Social Security Act (Act), a claimant must show, among other things, that he or she is the “widow” or “widower” of the insured. See Act § 202(e)(1), (f)(1). Widow and widower are defined as the surviving wife and husband, respectively. See section 216(c) & (g) of the Act; see also 20 C.F.R. §§ 404.345, 404.346.

In this case, the claimant and the NH entered into a foreign same-sex marriage in Ontario, Canada. At the time of the NH’s death, NH was domiciled in Maryland. Accordingly, we decide surviving spouse status by applying Maryland law to determine whether the foreign same-sex marriage was valid at the time of the NH’s death. See section 216(h)(1)(A)(i) of the Act; see 20 C.F.R. § 404.345, POMS GN 00210.006(B)(2). Under the law of Maryland, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into, unless the marriage is “repugnant” to Maryland public policy or prohibited expressly by the General Assembly. Port v. Cowan, 426 Md. 435, 444-45 (Md. 2012) (citing, inter alia, Henderson v. Henderson, 199 Md. 449, 458-59 (Md. 1952)).

In Maryland, marriage historically was defined as the voluntary union of one man and one woman. See Md. Code Fam. Law § 2-201 (West 2011) (“Only a marriage between a man and a woman is valid in this State.”). However, beginning in 2010, pursuant to a legal opinion by the state Attorney General, Maryland permitted the recognition as valid same-sex marriages legally entered into in other jurisdictions. See “Whether Out-of-State Same-Sex Marriage that is Valid in the State of Celebration May Be Recognized in Maryland,” 95 Op. Att’y Gen. 3 (Feb. 23, 2010), available at http://www.oag.state.md.us/Opinions/2010/95oag3.pdf (last accessed June 2, 2014). Subsequently, the Maryland legislature amended § 2-201 to recognize the validity of a marriage other than that between a man and a woman, effective January 1, 2013. See Md. Code Fam. Law § 2-201 (West 2014) (“Only a marriage between two individuals who are not otherwise prohibited from marrying is valid in this State.”). Furthermore, in Port v. Cowan, the Maryland Supreme Court recognized a same-sex marriage, validly performed in California, for the purposes of granting a domestic divorce in Maryland, conducting a comity analysis and stating that the Court could not “conclude logically that valid out-of-state same-sex marriages are ‘repugnant’ to Maryland public policy.” 426 Md. at 450-51. Accordingly, to determine whether the Maryland would recognize the marriage of claimant and the NH as valid, we must determine whether the marriage was valid in Ontario, Canada at the time it was entered into.

On June 10, 2003, the Court of Appeal for Ontario, Canada held that the definition of marriage as between one man and one woman violated the Canadian Charter of Rights and Freedoms. Halpern et. al. v. Attorney General of Canada, et al. (2003), 172 O.A.C. 276 (Can. Ont. C.A.), available at