TN 15 (12-15)

PR 05825.033 New Jersey

A. PR 16-017 Validity of Canadian same-sex marriage under NJ law for Widower Benefits and LSDP

DATE: Nov. 2, 2015

1. Syllabus

The claimant and number holder (NH) married in February 2004 in Ontario, Canada and remained married until the NH’s death January 2011. Same-sex marriages have been valid in Ontario, Canada since June 10, 2003. Since the NH died while domiciled in New Jersey, we look to New Jersey state law to determine if the claimant can collect widower’s benefits and the lump-sum death payment (LSDP) on the NH’s earnings record.

New Jersey recognizes same-sex marriages from other states and foreign jurisdictions as civil unions from February 19, 2007 through October 20, 2013, and under the intestacy law of the state, a claimant could inherit a spouse’s share of the NH’s personal property if the NH died intestate. Since New Jersey civil unions confer intestacy rights, SSA recognizes the couple’s civil union as a marital relationship for the purpose of satisfying the marital relationship requirement for widower and LSDP benefits on the NH’s record.

2. Issue

Whether New Jersey would recognize the same-sex Canadian marriage of H~ (Claimant) and P~, the number holder (NH), for the purpose of determining whether Claimant is entitled to widower’s benefits and the lump-sum death payment (LSDP) on the NH’s record.

3. Short Answer

New Jersey would recognize the 2004 Canadian same-sex marriage between the Claimant and the NH as a civil union as of February 19, 2007. Under New Jersey intestacy law, a civil union partner can inherit a spouse’s share of a number holder’s personal property, and, therefore, SSA treats the civil union as a marital relationship for determining entitlement to widower’s benefits and the LSDP. Thus, the Claimant is entitled to receive widower’s benefits and the LSDP on the NH’s record, assuming that the Claimant has satisfied the other statutory and regulatory requirements for such benefits.

4. BACKGROUND1

Claimant and the NH were lawfully married on February XX, 2004 in Ontario, Canada, and remained married until the date of the NH’s death. The NH died on January XX, 2011, and was a permanent resident of the State of New Jersey on the date of his death.

Claimant applied for widower’s benefits and the LSDP on the NH’s record on December XX, 2012. On January XX, 2013, the agency denied the claim because it did not satisfy the marriage requirements of the Social Security Act (Act). Claimant filed a request for reconsideration on March XX, 2013, which was denied on June XX, 2013.

On August XX, 2013, Claimant requested a hearing before an Administrative Law Judge (ALJ).

5. Discussion

a. Social Security Act and Regulations

To receive benefits as the widower of an insured wage earner, a claimant must, among other requirements, have been in a valid marital relationship for at least 9 months immediately prior to the insured’s death.2 42 U.S.C. §§ 402(f) and 416(g) (defining “widower”), 416(h)(1)(A); 20 C.F.R. §§ 404.335(a)(1); 404.344-45. A widower who was living in the same household as the deceased is entitled to the LSDP if the claimant and insured were in a marital relationship, as defined by SSA. 42 U.S.C. § 402(i) and 416(g); 20 C.F.R. §§ 404.345, 404.391. SSA looks to the laws of the state where the insured had a permanent home at the time of his death to determine whether the claimant and insured were validly married. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345.

The Program Operations Manual System (POMS) provides that non-marital legal relationships, such as a civil union or domestic partnership, can be treated as marital relationships for the purpose of determining entitlement to benefits. POMS GN 00210.004.A; see GN 00210.600 (regarding the LSDP). A claimant’s non-marital legal relationship will satisfy the relationship requirement for entitlement to benefits if: (a) the relationship was valid in the place it was established, and (b) it qualifies as a marital relationship using the law of the state of the number holder’s domicile. POMS GN 00210.004.B. A non-marital legal relationship will qualify as a marital relationship if, under the intestacy law of the state of the number holder’s domicile at the time of the number holder’s death, a claimant could inherit a spouse’s share of the number holder’s personal property if the number holder died without leaving a will. POMS GN 00210.004.A, B.2.

The POMS provides that from February 19, 2007 through October 20, 2013, New Jersey recognized same-sex marriages from other states as civil unions. POMS GN 00210.004.D New Jersey; GN 00210.003.A, B.5 New Jersey.

b. Canadian Law Regarding Same-Sex Marriage

Same-sex marriages have been valid in Ontario, Canada since June 10, 2003, when the Court of Appeals for Ontario held that the common law 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) 65 O.R. 3d 161 (Can. Ont. C.A.), available at http://www.ontariocourts.on.ca/decisions/2003/june/halpernC39172.htm Furthermore, 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.” Civil Marriage Act, S.C. 2005, c. 33 (Can.), available at http://laws-lois.justice.gc.ca/eng/acts/c-31.5/page-1.html. A same-sex marriage performed in Ontario, Canada subsequent to June 10, 2003 is therefore a valid marriage in that jurisdiction. 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.

c. New Jersey State Law Regarding Same-Sex Marriage

On December 21, 2006, the New Jersey Legislature enacted the Civil Union Act, which created civil unions for same-sex couples, effective February 19, 2007. See N.J. Stat. Ann. § 37:1-28, et. seq. On February 16, 2007, the New Jersey Attorney General issued an opinion stating that same-sex relationships validly established under the laws of other States and foreign nations would be recognized, beginning on February 19, 2007, either as a valid civil union or domestic partnership, but not as a same-sex marriage. Recognition in New Jersey of Same-Sex Marriages, Civil Unions, Domestic Partnerships and Other Government-Sanctioned, Same-Sex Relationships Established Pursuant to the Laws of Other States and Foreign Nations, N.J. Att’y Gen. Op. 3-2007 (Feb. 16, 2007), available at http://www.nj.gov/oag/newsreleases07/ag-formal-opinion-2.16.07.pdf (Formal Opinion 3-2007). New Jersey courts held that Formal Opinion 3-2007 was entitled to judicial deference. See Quarto v. Adams, 929 A.2d 1111, 1117 (N.J. Super. Ct. App. Div. 2007).

On June 26, 2013, the U. S. Supreme Court struck down Section 3 of the federal Defense of Marriage Act as unconstitutional and held that the Federal Government was required to provide the same rights and responsibilities to same-sex couples who were married under state law as to married couples of the opposite sex. United States v. Windsor, 570 U.S. 12 (2013). On September 27, 2013, the New Jersey courts found that civil union partners were denied equal access to federal benefits, and held that New Jersey must extend the right to civil marriage to same-sex couples. Garden State Equality v. Dow, 82 A.3d 336, 369 (N.J. Sup. Ct., 2013), stay denied 79 A.3d 479, certification granted 75 A.3d. 1157, stay denied 79 A.3d. 1036. An order accompanying the Garden State decision directed state officials to allow same-sex couples who qualified for civil marriage to marry in New Jersey beginning on October 21, 2013. See Id. As of the date of this Memorandum, no bill has been enacted into law in New Jersey regarding the retroactive recognition of same-sex marriages established under the laws of other jurisdictions.

d. New Jersey State Law Regarding Intestacy

Pursuant to the New Jersey Civil Union Act, the laws relating to intestate succession for legally-married couples “shall apply in like manner to civil union couples.” N.J. Stat. Ann. § 37:1-32 (West 2015). Under New Jersey intestacy law, a surviving spouse will inherit a spouse’s share of a decedent’s personal property if the decedent died without leaving a will. See N.J. Stat. Ann. § 3B:5-3 (West 2015). Thus, under New Jersey law, a civil union partner could inherit a spouse’s share of a decedent’s personal property if the decedent died intestate. N.J. Stat. Ann §§ 37:1-32; 3B:5-3; see POMS GN 00210.004.D. (stating that New Jersey law provides spousal inheritance rights to civil union partners).

6. ANALYSIS

The Claimant and NH entered into a valid same-sex marriage in Ontario, Canada on February XX, 2004, and remained married until the NH’s death on January XX, 2011. The NH was domiciled in the State of New Jersey on the date of his death, and thus, SSA will look to New Jersey law to determine whether the Claimant can collect widower’s benefits and the LSDP on the NH’s account. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345.

From February 19, 2007 through October 20, 2013, New Jersey recognized same-sex marriages from other states as civil unions. POMS GN 00210.004.D New Jersey; GN 00210.003.A, B.5 New Jersey. As discussed above, the New Jersey Attorney General’s opinion provided that New Jersey would recognize same-sex marriages from foreign nations as civil unions, as of February 19, 2007. Formal Opinion 3-2007. Thus, New Jersey would have recognized the Claimant’s Canadian marriage as a civil union.

SSA recognizes a non-marital legal relationship, such as a civil union, as a marital relationship for the purpose of determining eligibility for benefits if, under the intestacy law of the state of the NH’s domicile at the time of the NH’s death, a claimant could inherit a spouse’s share of the NH’s personal property if the NH died intestate. POMS GN 00210.004.A, B. Under New Jersey law, a partner in a civil union could inherit a spouse’s share of a decedent’s personal property if the decedent died intestate, and thus, the civil union is considered a marital relationship for the purpose of determining whether the Claimant is eligible for widower’s benefits and the LSDP. N.J. Stat. Ann §§ 37:1-32; 3B:5-3; see POMS GN 00210.004.D (stating that New Jersey law provides spousal inheritance rights to civil union partners). The Claimant and NH were in a relationship New Jersey recognized as a valid civil union for over 9 months prior to the NH’s death, and thus, assuming that the claimant has satisfied the other statutory and regulatory requirements for such benefits, he is entitled to receive widower’s benefits and the LSDP on the NH’s account.

7. CONCLUSION

New Jersey recognized Claimant’s Canadian marriage to the NH as a valid civil union as of February 19, 2007. Because New Jersey civil unions confer intestacy rights, SSA recognizes a New Jersey civil union as a marital relationship for the purpose of satisfying the marital relationship requirement for widower’s benefits and the LSDP. Thus, the Claimant is entitled to widower’s benefits and the LSDP on the NH’s record, assuming that the Claimant has satisfied the other statutory and regulatory requirements for such benefits.

B. PR 16-009 Validity Under New Jersey Law of Same-Sex Marriage Performed in Foreign Jurisdiction

DATE: October 16, 2015

1. Syllabus

The claimant adopted a child, T~ in June 2004 and another child, J~ in May 2005. The claimant and number holder (NH) entered into a valid same-sex marriage in British Columbia, Canada in July 2006 and remained in a marriage until the NH’s death in November 2011. Both the claimant and the NH were living in New Jersey at the time of the NH’s death, so we look to the laws of New Jersey to determine if the claimant can collect father’s benefits on the NH’s earnings record.

Beginning February 19, 2007, New Jersey began recognizing same-sex relationships validly established under the laws of other States and foreign nations either as a civil union or domestic partnership. Since the NH and claimant’s Canadian marriage was recognized as a valid civil union and because this type of relationship confers intestacy rights, SSA recognizes the civil union as a marital relationship for the purpose of satisfying the marital relationship requirement for father’s benefits on the NH’s record.

2. Opinion

QUESTION PRESENTED

Whether New Jersey would recognize the same-sex Canadian marriage of S~, the number holder (NH) and W~ (Claimant), for the purpose of determining whether the Claimant is entitled to father’s benefits on the record of the NH.

SHORT ANSWER

New Jersey would recognize the 2006 Canadian same-sex marriage between the Claimant and the NH as a civil union as of February 19, 2007. No actions were taken to terminate the marriage prior to the death of the NH on November XX, 2011. Under New Jersey intestacy law, a civil union partner can inherit a spouse’s share of a number holder’s personal property, and, therefore, SSA treats the civil union as a marital relationship for determining entitlement to father’s benefits. Thus, the Claimant is entitled to receive father’s benefits, assuming that the Claimant has satisfied the other statutory and regulatory requirements for such benefits.

BACKGROUND3

On June XX, 2004, the Claimant adopted T~, and on May XX, 2005, the Claimant adopted J~.

The Claimant and the NH were married on July XX, 2006, in British Columbia, Canada. The NH died on November XX, 2011, in New York, New York. Both the Claimant and the NH were living in New Jersey at the time of the NH’s death.

The Claimant applied for father’s benefits on the account of the NH on August XX, 2013, with a protective filing date of July XX, 2013.

LEGAL FRAMEWORK

Social Security Act and Regulations

To receive father’s benefits on the account of an insured wage earner, a claimant must, inter alia, have been in a valid marital-relationship for at least nine months immediately prior to the insured’s death. 42 U.S.C. §§ 402(g), 416(a) (defining “surviving spouse”), 416(g) (defining “widower”), 416(h)(1)(A); 20 C.F.R. §§ 404.339, 404.344, 404.345. SSA looks to the laws of the state where the insured had a permanent home at the time of his death to determine whether the claimant and insured were validly married. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345.

The Program Operations Manual System (POMS) provides that non-marital legal relationships, such as a civil union or domestic partnership, can be treated as marital relationships for the purpose of determining entitlement to benefits. POMS GN 00210.004.A. A claimant’s non-marital legal relationship will satisfy the relationship requirement for entitlement to benefits, if: (a) the relationship was valid in the place it was established, and (b) it qualifies as a marital relationship using the law of the state of the number holder’s domicile. POMS GN 00210.004.B. A non-marital legal relationship will qualify as a marital relationship if, under the intestacy law of the state of the number holder’s domicile at the time of the number holder’s death, a claimant could inherit a spouse’s share of the number holder’s personal property if the number holder died without leaving a will. POMS GN 00210.004.A, B.2.

The POMS provides that from February 19, 2007 through October 20, 2013, New Jersey recognized same-sex marriages from other states as civil unions. POMS GN 00210.004.D New Jersey; GN 00210.003.A, B.5 New Jersey.

Canadian Law Regarding Same-Sex Marriage

Same-sex marriages have been valid in British Columbia, Canada since July 8, 2003, when the Court of Appeals for British Columbia lifted the suspension on its May 1, 2003 decision recognizing same-sex marriage. Barbeau v. British Columbia (Attorney General), (2003) B.C.C.A. 251, para 7, available at http://www.courts.gov.bc.ca/jdb-txt/ca/03/02/2003bcca0251.htm. Furthermore, 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.” Civil Marriage Act, S.C. 2005, c. 33 (Can.), available at http://laws-lois.justice.gc.ca/eng/acts/C-31.5/page-1.html#h-1. A same-sex marriage performed in British Columbia, Canada subsequent to July 8, 2003 is therefore a valid marriage in that jurisdiction. 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.

New Jersey State Law Regarding Same-Sex Marriage

On December 21, 2006, the New Jersey Legislature enacted the Civil Union Act, which created civil unions for same-sex couples, effective February 19, 2007. See N.J. Stat. Ann. § 37:1-28, et. seq. (West 2015). On February 16, 2007, the New Jersey Attorney General issued an opinion stating that same-sex relationships validly established under the laws of other States and foreign nations would be recognized, beginning on February 19, 2007, either as a valid civil union or domestic partnership, but not as a same-sex marriage. Recognition in New Jersey of Same-Sex Marriages, Civil Unions, Domestic Partnerships and Other Government-Sanctioned, Same-Sex Relationships Established Pursuant to the Laws of Other States and Foreign Nations, N.J. Atty Gen. Op. 3-2007 (Feb. 16, 2007), available at http://www.nj.gov/oag/newsreleases07/ag-formal-opinion-2.16.07.pdf (Formal Opinion 3-2007). New Jersey courts held that Formal Opinion 3-2007 was entitled to judicial deference. See Quarto v. Adams, 929 A.2d 1111, 1117 (N.J. Super. Ct. App. Div. 2007).

On June 26, 2013, the U. S. Supreme Court struck down Section 3 of the federal Defense of Marriage Act as unconstitutional and held that the Federal Government was required to provide the same rights and responsibilities to same-sex couples who were married under state law as to married couples of the opposite sex. United States v. Windsor, 570 U.S. 12 (2013). On September 27, 2013, the New Jersey courts found that civil union partners were denied equal access to federal benefits, and held that New Jersey must extend the right to civil marriage to same-sex couples. Garden State Equality v. Dow, 82 A.3d 336, 369 (N.J. Sup. Ct., 2013), stay denied 79 A.3d 479, certification granted 75 A.3d. 1157, stay denied 79 A.3d. 1036. An order accompanying the Garden State decision directed state officials to allow same-sex couples who qualified for civil marriage to marry in New Jersey beginning on October 21, 2013. See Id. As of the date of this Memorandum, no bill has been enacted into law in New Jersey regarding the retroactive recognition of same-sex marriages established under the laws of other jurisdictions.

New Jersey State Law Regarding Intestacy

Pursuant to the New Jersey Civil Union Act, the laws relating to intestate succession for legally-married couples “shall apply in like manner to civil union couples.” N.J. Stat. Ann. § 37:1-32 (West 2015). Under New Jersey intestacy law, a surviving spouse will inherit a spouse’s share of a decedent’s personal property if the decedent died without leaving a will. See N.J. Stat. Ann. § 3B:5-3 (West 2015). Thus, under New Jersey law, a civil union partner could inherit a spouse’s share of a decedent’s personal property if the decedent died intestate. N.J. Stat. Ann §§ 37:1-32; 3B:5-3; see POMS GN 00210.004.D (stating that New Jersey law provides spousal inheritance rights to civil union partners).

ANALYSIS

The Claimant and the NH entered into a valid same-sex marriage in British Columbia, Canada on July XX, 2006, and remained in a marriage until the NH’s death on November XX, 2011. Because the NH was domiciled in New Jersey at the time of his death, we look to the laws of New Jersey to determine if the Claimant can collect father’s benefits on the account of the NH. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345.

From February 19, 2007 through October 20, 2013, New Jersey recognized a valid out-of-state same-sex marriage as a civil union. POMS GN 00210.004.D New Jersey; GN 00210.003.A; B.5 New Jersey. As discussed above, the New Jersey Attorney General’s opinion provided that New Jersey would recognize same-sex marriages from foreign nations as civil unions, as of February 19, 2007. Formal Opinion 3-2007. Thus, New Jersey would have recognized the Claimant’s Canadian marriage as a civil union.

SSA recognizes a non-marital legal relationship, such as a civil union, as a marital relationship for the purpose of determining eligibility for benefits if, under the intestacy law of the state of the NH’s domicile at the time of the NH’s death, a claimant could inherit a spouse’s share of the NH’s personal property if the NH died intestate. POMS GN 00210.004.A, B. Under New Jersey law, a partner in a civil union could inherit a spouse’s share of a decedent’s personal property if the decedent died intestate, and thus, the civil union is considered a marital relationship for the purpose of determining whether the Claimant is eligible for father’s benefits. N.J. Stat. Ann §§ 37:1-32; 3B:5-3; see POMS GN 00210.004.D (stating that New Jersey law provides spousal inheritance rights to civil union partners). The Claimant and NH were in a relationship New Jersey recognized as a valid civil union for over 9 months prior to the NH’s death, and thus, assuming that the claimant has satisfied the other statutory and regulatory requirements for such benefits, he is entitled to receive father’s benefits on the NH’s account.

CONCLUSION

New Jersey recognized Claimant’s Canadian marriage to the NH as a valid civil union as of February 19, 2007. Because New Jersey civil unions confer intestacy rights, SSA recognizes a New Jersey civil union as a marital relationship for the purpose of satisfying the marital relationship requirement for father’s benefits. Thus, the Claimant is entitled to father’s benefits on the NH’s record, assuming that the Claimant has satisfied the other statutory and regulatory requirements for such benefits.

Stephen P. Conte /s/

Regional Chief Counsel, Region II


Footnotes:

[1]

This opinion is based on information contained within the Applicant’s Claim File, which was provided by the Office of the Regional Chief ALJ, Region II.

[2]

The regulations contain exceptions to the 9-month duration requirement; however, those exceptions are not relevant to this matter. See 20 C.F.R. § 404.335(a)(2).

[3]

This opinion is based upon evidence provided by the New York Center for Programs Support, including a Certificate of Marriage.


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http://policy.ssa.gov/poms.nsf/lnx/1505825033
PR 05825.033 - New Jersey - 12/22/2015
Batch run: 12/22/2015
Rev:12/22/2015