TN 7 (05-15)
PR 05825.035 New York
A. PR 14-073 E~ – Entitlement to Widow’s Benefits on the Account of Number Holder T~ – Validity Under New York Law of Same-Sex Marriage Performed in Foreign Jurisdiction
DATE: December 17, 2013
Since February 1, 2008, the State of New York recognizes as valid same-sex marriages that were solemnized under laws of other states or nations.
Whether New York State would recognize the same-sex Canadian marriage of E~ (claimant) and T~, the number holder (NH).
The claimant and the NH were lawfully married in Ontario, Canada in May 2007. Since February 1, 2008, the State of New York, the NH’s domicile at the time of her death, recognizes as valid same-sex marriages that were solemnized under laws of other states or nations. No actions were taken to terminate the marriage prior to the death of the NH on February 5, 2009. Therefore, under the specific facts of this case, the marriage remained valid, and as a result, there would be legal support for the agency to find that the claimant is entitled to widow’s benefits on the NH’s record as her surviving spouse.
The claimant and the NH were married on May 22, 2007, in Ontario, Canada. The NH died on February 5, 2009, in New York, New York. Both the claimant and the NH were living in New York at the time of the NH’s death. The claimant was listed as the surviving spouse and informant on the Certificate of Death. The claimant has not remarried.
In November 2010, the claimant filed for widow’s benefits as a surviving spouse on the NH’s record. The agency denied the claim in April 2011, and the claimant requested reconsideration in June 2011. The agency denied the request for reconsideration on April 28, 2012, and on June 5, 2012, the claimant submitted a written request to use the agency’s expedited appeal process (EAP). The EAP request remains pending to date.
Since February 1, 2008, New York has recognized as valid same-sex marriages entered into in other jurisdictions, including Canada. The marriage between the claimant and the NH, therefore, was a valid marriage in New York at the time of the NH’s death. Accordingly, if the claimant meets the other criteria for receipt of widow’s benefits, there would be legal support for the agency to find that she is entitled to those benefits on the NH’s record.
A. New York State Law Regarding Same-Sex Marriage
In New York, case law traditionally defined marriage as the voluntary union of one man and one woman as husband and wife. See Hernandez v. Robles, 855 N.E.2d 1, 6, 9-12 (N.Y. 2006) (stating that “New York’s statutory law clearly limits marriage to opposite-sex couples” and upholding that law’s constitutionality).
However, on February 1, 2008, a New York appellate court considered a same-sex marriage entered into in Ontario, Canada in July 2004, and held that New York would recognize same-sex marriages validly entered into in other jurisdictions. Martinez v. County. of Monroe, 850 N.Y.S.2d 740, 742 (4th Dept. 2008), leave to appeal denied, 859 N.Y.S. 2d 617, 889 N.E.2d 496 (2008). Also, in 2011, the State of New York, through Attorney General Eric , filed an amicus brief in the claimant’s case before the District Court for the Southern District of New York, which stated, “New York has long recognized as valid same-sex marriages that were solemnized under the laws of other States or nations, such as plaintiff E~ W~'s Canadian marriage to T~ .” Windsor v. U.S., 2011 WL 3754396 (S.D.N.Y. July 26, 2011) (emphasis added). Furthermore, the Supreme Court’s ruling on the claimant’s challenge to the constitutionality of DOMA noted that “New York deems [the claimant’s] Ontario marriage to be a valid one.” U.S. v. Windsor, 133 S.Ct. at 2683 (internal citation omitted).
The decision in M~ considered together with the amicus brief filed by the State of New York and the Supreme Court’s decision, all support the conclusion that since Februrary 1, 2008, New York has recognized same-sex marriages validly entered into in other jurisdictions.
Here, the parties entered into a valid same-sex marriage in Ontario, Canada on May 22, 2007, and the NH died in New York on February 5, 2009. Thus, under New York law, the claimant’s marriage would be recognized as valid since at least February 1, 2008. Accordingly, the claimant’s marriage to the NH was valid for purposes of determining the claimant’s entitlement to widow’s benefits as a surviving spouse of the NH.
The claimant’s marriage to the NH was valid under New York law.
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#h-1.
Specifically, the claimant was married to the NH for at least 9 months immediately before the NH died. Further, the claimant has applied for benefits, is at least 60 years old, is unmarried, and is not entitled to an old-age benefit that is equal to or larger than the NH’s primary insurance amount.
This opinion is based upon evidence provided by the New York Center for Programs Support, including a Marriage Registration Extract and Death Transcript.
Also, in November 2010, the claimant filed a civil action in the District Court for the Southern District of New York challenging the constitutionality of section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7, which defined “marriage” within any Act of Congress as a legal union between one man and one woman. See Windsor v. U.S., 833 F. Supp. 2d 394 (S.D.N.Y. 2012), aff’d, 699 F.3d 169 (2d Cir. 2012). Plaintiff successfully challenged the constitutionality of section 3 of the DOMA in both the District Court and Court of Appeals for the Second Circuit, id., and on June 26, 2013, the Supreme Court agreed with the claimant and held that the DOMA’s definition of marriage was unconstitutional. U.S. v. Windsor, -- U.S. --, 133 S.Ct. 2675 (2013). The agency was not a party to the Windsor civil action and resulting Supreme Court decision, which did not specifically involve the plaintiff’s claim for widow’s benefits.
Effective July 24, 2011, after both the claimant’s marriage to the NH and the NH’s death, the Marriage Equality Act amended New York Domestic Relation Law to provide that marriages of same-sex couples and different-sex couples be treated equally in all respects. N.Y. Dom. Rel. Law § 10-a (McKinney 2013).
Although not a holding of the State’s top court, M~ applies state-wide. See Mountain View Coach Lines, Inc. v. Storms, 476 N.Y.S.2d 918, 919-20 (1984) (“[t]he Appellate Division is a single statewide court divided into departments for administrative convenience.” Stare decisis requires trial courts in one department of the Appellate Division to follow precedents set by the Appellate Division of another department until the Court of Appeals or the Appellate Division of another department pronounces a contrary rule).