TN 10 (08-15)

PR 05825.026 Minnesota

A. PR 15-171 MOS-MN—Same-Sex Marriage in Canada

Date: July 29, 2105

1. Syllabus

The number holder (NH) and claimant were married in 2005 in Toronto, Ontario, Canada. The NH was domiciled in Minnesota and became entitled to benefits beginning in February 2013. The claimant filed for spouse’s benefits on the NH’s earnings record in November 2013. Since August 1, 2013, Minnesota has recognized same-sex marriages entered into in other jurisdictions. The same-sex marriage was legal in Canada when the claimant and the NH married in 2005. Since the marriage was valid under Canadian law, the couple’s marriage was also recognized as valid in Minnesota. Therefore, the claimant is entitled to spouse’s benefits on the NH’s earnings record.

2. Opinion

You asked whether the claimant, M~, is entitled to benefits as the spouse of the number holder (NH), K~, based on her same-sex marriage to the NH in Canada and the NH’s domicile in Minnesota. For the reasons discussed below, we conclude that the claimant’s Canadian marriage to the NH is valid under both Canadian and Minnesota law. Therefore, you may find that the claimant is entitled to spouse’s benefits on the NH’s account.

BACKGROUND

The claimant and the NH were married on November XX, 2005, in Toronto, Ontario, Canada. The evidence submitted to OGC includes a copy of their marriage certificate from the Registrar General of Ontario, Canada.1 They are still married and live in Minnesota.

The NH became entitled to benefits beginning in February 2013. The claimant filed for spouse’s benefits on the NH’s record on November XX, 2013. The NH was domiciled in Minnesota at the time the claimant’s application was filed.

DISCUSSION

I. Social Security Act and Regulations

Under Title II of the Social Security Act (the Act), a claimant may be entitled to benefits as the wife or husband of an insured individual who is entitled to old-age or disability benefits. See Section 202(b)(1), (c)(1) of the Act; see also 20 C.F.R. § 404.330. To establish her relationship as the insured’s spouse, the claimant must show that the courts of the state in which the insured is domiciled at the time the application was filed would find that the claimant and the insured were validly married at the time the application was filed.2 See Section 216(h)(1)(A)(i) of the Act; 20 C.F.R. § 404.345; POMS GN 00210.002B, RS 00202.001A.1.

Following the U.S. Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), the agency is no longer prohibited from recognizing same-sex marriages for purposes of determining benefits. See POMS GN 00210.001. As such, all claims filed on or after June 26, 2013, or that were pending final determinations at the time of the decision will be subject to the Windsor instructions in the POMS at GN 00210.000. See id. As relevant to this case, where a claimant entered into a same-sex marriage in a foreign jurisdiction, the agency must determine whether the foreign marriage is recognized under state law criteria of the NH’s domicile. See POMS GN 00210.006B.2.a. Specifically, a claimant is considered married for Title II benefits purposes if the foreign same-sex marriage: (1) would be recognized by the courts of the state of the NH’s domicile as valid, and (2) is valid in the jurisdiction it was celebrated in. See id.

Here, the claimant and the NH were married in Ontario, Canada. The NH was domiciled in Minnesota at the time of the claimant’s application for spouse’s benefits and continues to live in Minnesota. Thus, we look to Minnesota and Canadian law to determine whether the claimant and the NH are validly married, for purposes of entitlement to spouse’s benefits under Title II of the Act.

II. Minnesota Law Regarding Same-Sex Marriage

Minnesota legalized same-sex marriage in August 2013. Its marriage statute was amended to read that “[a] civil marriage, so far as its validity in law is concerned, is a civil contract between two persons.” Marriage—Civil Marriage Between Two Persons—Exemptions and Protections, ch. 74, § 2, 2013 Minn. Sess. Law Serv. (West) (codified as amended at Minn. Stat. § 517.01). The amendment removed prior language indicating that marriage could only be contracted between “two persons of the opposite sex,” and replaced it with the gender-neutral term “two persons.” See id. The 2013 law also deleted a provision which prohibited marriages between persons of the same sex. See id. § 3 (deleting former Minn. Stat. § 517.03 subd. 1(a)(4)). It further enacted a new provision that, for purposes of implementing the rights and responsibilities of spouses in a civil marriage between persons of the same sex, gender-specific terminology (such as “husband,” “wife,” or similar terms) must be construed in a neutral matter to refer to a person of either gender. See id. § 6 (codified at Minn. Stat. § 517.201 subd. 2).

Minnesota also recognizes lawful marriages between same-sex couples solemnized in other jurisdictions. The Minnesota Supreme Court has long held that “[t]he validity of a marriage normally is determined by the law of the place where the marriage is contracted. If valid by that law the marriage is valid everywhere unless it violates a strong public policy of the domicile of the parties.” Laikola v. Engineered Concrete, 277 N.W.2d 653, 655-56 (Minn. 1979) (internal quotations and citation omitted). Previously, Minnesota’s marriage statute expressly declared void same-sex marriages that were recognized by another state or foreign jurisdiction. See Minn. Stat. § 517.03 subd. 1(b) (2013)3 ; Laikola, 277 N.W.2d at 656 (finding that marriages declared void by Minnesota legislature violated the state’s strong public policy). However, the 2013 law deleted this provision in its entirety. See Marriage—Civil Marriage Between Two Persons—Exemptions and Protections, ch. 74, § 3, 2013 Minn. Sess. Law Serv. (West).

Thus, since August 1, 2013, Minnesota has recognized as valid same-sex marriages entered into in other jurisdictions. Accordingly, to determine whether Minnesota would recognize the same-sex marriage between the claimant and the NH as valid, we must determine whether the marriage was valid in Ontario, Canada at the time it was entered into.

III. Canadian Law Regarding Same-Sex Marriage4

On June 10, 2003, the Court of Appeal for Ontario, Canada, legalized same-sex marriage in Ontario, holding that the common law definition of marriage as between one man and one woman violated the Canadian Charter of Rights and Freedoms. See Halpern, et al. v. Attorney General of Canada, et al. (2003), 65 O.R. 3d 161 (Can. Ont. C.A.), available at http://www.ontariocourts.on.ca/decisions/2003/june/halpernC39172.htm.

Subsequently, on July 20, 2005, the Civil Marriage Act legalized same-sex marriage 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. 33 (Can.), available at http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2005_33/FullText.html. In addition, on June 26, 2013, the Canadian Parliament amended the Civil Marriage Act, specifically recognizing marriages of non-resident persons retroactively. See Civil Marriage of Non-Residents Act, S.C. 2013, c. 30 (Can.), available at http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2013_30/FullText.html.

In sum, same-sex marriage was legal in Canada when the claimant and the NH married in Ontario in November 2005. Further, Canadian law did not require them to be Canadian residents to enter into a valid same-sex Canadian marriage. We therefore conclude that their same-sex marriage was valid under Canadian law. Accordingly, their marriage is also recognized as valid in Minnesota.

CONCLUSION

For the reasons discussed above, we conclude that the claimant’s marriage to the NH is valid under both Canadian and Minnesota law. Assuming that the claimant has satisfied other statutory and regulatory requirements, she is entitled to spouse’s benefits on the NH’s account. If you have any further questions concerning this matter, please contact the undersigned at (877) 800-7578 ext. 19106.

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By:

Cristine Bautista

Senior Counsel


Footnotes:

[1]

The preferred proof of a ceremonial marriage performed in a foreign country is a church or civil record issued pursuant to the foreign law which shows the claimant and the NH as married. See POMS GN 00305.020A.4. The marriage document submitted to OGC appears to satisfy this evidentiary requirement.

[2]

To be entitled to spouse’s benefits, the claimant must also meet all other requirements of section 202(b)(1) or (c)(1) of the Act. See also 20 C.F.R. § 404.330.

[3]

This former provision read: “A marriage entered into by persons of the same sex, either under common law or statute, that is recognized by another state or foreign jurisdiction is void in this state and contractual rights granted by virtue of the marriage or its termination are unenforceable in this state.”

[4]

Our discussion of the law of Ontario, Canada, is based in part on a report provided by the Law Library of Congress to the agency.


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http://policy.ssa.gov/poms.nsf/lnx/1505825026
PR 05825.026 - Minnesota - 08/10/2015
Batch run: 08/10/2015
Rev:08/10/2015