TN 17 (04-16)

PR 05825.041 Oregon

A. PR 16-057 Evaluation of Canadian Same Sex Marriage where State of Domicile is Oregon.

DATE: January 6, 2016

1. Syllabus

The claimant and number holder (NH) married in British Columbia, Canada, in July 2003. Same-sex marriages have been valid in British Columbia since May 2003. The NH died in May 2014 while domiciled in Oregon. Oregon does not have a specific statute regarding recognition of marriages executed in foreign countries. As a general rule, though, Oregon looks to the law of the jurisdiction certifying the marriage to determine the marriage’s validity. We determined the couple’s Canadian marriage was lawful in the jurisdiction where it occurred and since Oregon did not have a public policy or local law prohibiting recognition of this marriage, this marriage was valid under the laws of Oregon at the time of the NH’s death. Therefore, the couple is married for the purposes of the claimant’s entitlement to widow’s benefits under Title II.

2. Opinion

Question Presented

Should the Social Security Administration (the agency) consider a same-sex couple as married based on a 2003 Canadian ceremonial marriage?

Brief Answer

Yes. The marriage was valid in the jurisdiction where it was performed, and, at the time of the number holder’s death, the domicile state had no laws or public policy prohibiting the marriage.

Summary of Facts

P~ (the claimant) applied for surviving spouse’s benefits on the record of number holder, M~ (the NH). The claimant and the NH, a same-sex couple, were married on July XX, 2003, in a civil ceremony in British Columbia. The NH died on May XX, 2014. At the time of her death, the couple resided in Oregon. They never registered as domestic partners.

Analysis

Generally, an individual is entitled to widow’s or widower’s benefits if the individual (1) is the insured’s widow or widower and the marital relationship lasted at least nine months before the insured died; (2) files an application; (3) is at least 60 years old; (4) is not entitled to an old-age benefit that is equal to or larger than the insured person’s primary insurance amount; and (5) is not currently married. 42 U.S.C. §§ 402(e), 402(f); 20 C.F.R. § 404.335. Similarly, upon the death of a person who died as a fully or currently insured individual under the Social Security Act, a lump-sum death payment may be paid to the widow or widower of the insured who was living in the same household at the time of death. 42 U.S.C. § 402(i); 20 C.F.R. § 404.391. The Agency will determine whether a claimant is the insured’s widow or widower by looking to the laws of the state where the insured was domiciled when he or she died. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. At the time of her death, the NH resided in Oregon; lacking any evidence to the contrary, we take this as her state of domicile. See District of Columbia v. Murphy, 314 U.S. 441, 455 (1941) (citations omitted) (“The place where a man lives is properly taken to be his domicile until facts adduced establish the contrary.”). Thus, the issue is whether Oregon will recognize this same-sex Canadian marriage.

Oregon does not have a specific statute regarding recognition of marriages executed in foreign countries. As a general rule, though, Oregon looks to the law of the jurisdiction certifying the marriage to determine the marriage’s validity. See Garrett v. Chapman, 449 P.2d 856, 858 (Or. 1969) (certifying a Montana marriage); see also In re Booker, 557 P.2d 248, 250 (Or. App. 1976) (recognizing common law marriages from other states). Oregon courts have considered foreign laws in determining whether to recognize a marriage alleged to have occurred in another country. See Gorman v. Gorman, 316 P.2d 543, 544-545 (Or. 1957) (finding alleged Scottish marriage not proven); Werden v. Thorpe, 867 P.2d 557, 560 (Or. Ct. App. 1994) (finding valid but voidable Mexican marriage).

This marriage appears valid where it was performed. Same-sex marriages have been valid in British Columbia since the British Columbia Court of Appeal recognized same-sex marriage in May 2003. Barbeau v. British Columbia (Attorney General), [2003] B.C.C.A., 251, para. 7. The court suspended its decision until “July 12, 2004, solely to give the federal and provincial governments time to review and revise legislation to accord with this decision.” Id. However, on July 8, 2003, the Court lifted the suspension, giving full effect to its decision. Barbeau v. British Columbia, [2003] B.C.C.A., 406. Thus, same-sex marriage became legal in British Columbia at least as of July 8, 2003. The claimant and the NH were married later that month. Accordingly, the claimant and the NH were validly married under British Columbia la