TN 9 (08-15)

PR 05825.025 Kentucky

Date: July 27, 2015

PR 15-169 Validity of Canadian Same-Sex Marriage for Entitlement to Hospital Insurance Benefits – Kentucky

1. Syllabus

The claimant and number holder (NH) married in October 2009 in Alberta, Canada. Although Obergefell did not specifically address whether States must recognize same-sex marriages performed in other countries, Kentucky already has a history of recognizing valid foreign marriages. Because Kentucky allows and recognizes same-sex marriages and valid foreign marriages, the claimant is married to the number holder (NH) under Kentucky law for purposes of determining the claimant’s entitlement to health insurance benefits (HIB) on the NH’s record.

2. Opinion

QUESTION

You asked whether the number holder (NH) and Claimant, who entered into a same-sex marriage in Canada, are validly married under Kentucky law for purposes of determining Claimant’s entitlement to hospital insurance benefits (HIB) on NH’s earnings record.

OPINION

Claimant is validly married to NH under Kentucky law for purposes of determining Claimant’s entitlement to HIB on NH’s earnings record.

BACKGROUND

According to the information provided, M~ (Claimant) married K~ (NH) on October XX, 2009, in Alberta, Canada. Both Claimant and NH are female and

NH currently receives old-age insurance benefits. On or about March XX, 2014, Claimant applied for HIB on NH’s earnings record. Claimant was sixty-seven years old when she filed the application and had obtained Lawful Permanent Resident Status in the United States on February XX, 2014. Claimant provided documentation showing she and NH currently reside in Florence, Kentucky.

DISCUSSION

A claimant may be entitled to HIB if she has attained age 65 and is entitled to monthly insurance benefits under section 202 of the Social Security Act, or would be entitled to those benefits except that she has not filed an application. See Social Security Act (Act) § 226(a); 42 C.F.R. § 406.10(a) (2015)1 ; See also Program Operations Manual System (POMS) HI 00801.022C.1 (providing an individual aged 65 or over who is eligible for spouse’s benefits may file an application for HIB only). A claimant is entitled to wife’s insurance benefits (WIB) under section 202 of the Act if she is the wife of an individual entitled to old-age insurance benefits. See Act § 202(b)(1); 20 C.F.R. § 404.330(a). A claimant may qualify as the wife of an insured individual if validly married to the insured individual under the laws of the State where the insured individual had a permanent home when the claimant applied for WIB. See Act §§ 216(b), 216(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345; See also POMS RS 00202.001A.1 (providing a legal spouse of a living number holder must be validly married to the number holder under the laws of the State of the number holder’s domicile at the time she files an application or during the life of the application). Because the Claimant and NH currently reside in Florence, Kentucky, we look to Kentucky law to determine if Claimant and NH are validly married.

Until recently, Kentucky law prohibited same-sex marriage or the recognition of same-sex marriage. See Ky. Const. § 233A, Ky. Rev. Stat. Ann. §§ 402.005, 402.020(1)(d), 402.040(2), 402.045 (West 2015). On June 26, 2015, however, the U.S. Supreme Court held that same-sex couples must be permitted to marry in all States. See Obergefell v. Hodges, 576 U.S. --, 2015 WL 2473451, at *19 (2015). The Court also held that State laws prohibiting recognition of valid same-sex marriages were invalid. The Court reasoned that, having required all States to allow same-sex couples to marry, “[i]t follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” Id. at *23. As a result, beginning June 26, 2015, Kentucky must recognize all out-of-state same-sex marriages. POMS GN 00210.003A (State law chart noting that Kentucky recognized same-sex marriages performed in another jurisdiction beginning June 26, 2015.)

In this case, Claimant and NH provided a Canadian marriage certificate dated October XX, 2009. As of July 20, 2005, Canada recognized the validity of same-sex marriages. See The Law Library of Congress, Report for U.S. Soc. Sec. Admin. LL File No. 2014-010685, Canada: Legal Recognition of Marriage (2014). The marriage certificate and ot