TN 4 (12-14)

PR 05830.070 Canada

A. PR 15-050 T~’s Entitlement to Spouse’s Benefits on the Account of Number Holder C~ , Involving the Validity of a Same-Sex Marriage Performed in British Columbia, Canada Under District of Columbia Law— Life Case — REPLY

DATE: November 20, 2014

1. Syllabus

The claimant and number holder (NH) entered into a same-sex marriage on July 18, 2008, in Quebec, Canada The NH continues to reside in British Columbia. Because the NH resided in Canada at the time the claimant applied for benefits, we apply District of Columbia law to determine whether they were validly married. Because same sex marriages had been legal in British Columbia since July 8, 2003, the District of Columbia would recognize their marriage as valid. Therefore, the claimant can be determined to be the surviving spouse of the NH for purposes of spouse’s benefits

2. OPINION

QUESTION PRESENTED

T~ (claimant) and, C~, the number holder (NH), entered into a same-sex marriage on July 18, 2008, in Quebec, Canada. Does the claimant qualify as the NH’s spouse for purposes of determining his entitlement to spouse’s benefits?

OPINION

Yes. The claimant qualifies as the NH’s spouse. Accordingly, if the claimant meets the other criteria for entitlement to spouse’s benefits, the agency should find that she is entitled to spouse’s benefits on the NH’s record.

BACKGROUND

The claimant and the NH entered into a same-sex marriage on January 14, 2006, in British Columbia, Canada. The NH continues to reside in British Columbia. On June 28, 2013, the claimant filed for Social Security benefits as the NH’s spouse. You requested a legal opinion regarding whether the claimant is the NH’s spouse for purposes of the claimant’s entitlement to benefits.

ANALYSIS1

A claimant is entitled to spousal benefits under Title II of the Act if, among other things, he or she is the spouse of an insured individual who is entitled to old-age or disability benefits. 2 See 42 U.S.C. §§ 402(c), 416(a)(1); 20 C.F.R. § 404.330. The claimant bears the burden of proving that he or she is in a valid marital relationship with the insured and is therefore the insured’s spouse. See 20 C.F.R §§ 20 C.F.R. §§ 404.345, 404.704, 404.723, 404.725. In determining the claimant’s relationship as the insured’s spouse, the agency looks to the law of the state where the insured had a permanent home at the time the claimant applied for benefits. See 42 U.S.C.§ 416(h)(1)(A)(i). If the insured was not domiciled in any state, the agency applies the law of the District of Columbia. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345; POMS GN 00210.006(B)(2).a.

Here, because the NH resided in Canada at the time the claimant applied for benefits, we apply District of Columbia law to determine whether they were validly married. Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946). The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942). As pertinent here, the District of Columbia began recognizing as valid same-sex marriages entered into in other jurisdictions beginning on July 7, 2009. See Section 1287a of the Jury and Marriage Amendment Act of 2009, D.C. Code § 46-405.01 (“A marriage legally entered into in another jurisdiction between 2 persons of the same sex that is recognized as valid in that jurisdiction, that is not expressly prohibited . . . , and has not been deemed illegal . . . , shall be recognized as a marriage in the District.”). Accordingly, the recognition of same-sex marriages performed in other jurisdictions does not appear to violate a strong public policy of the District. We therefore consider whether the claimant’s and the NH’s marriage is valid under the law of British Columbia, Canada.

On May 1, 2003, the Court of Appeals for British Columbia, Canada held that the definition of marriage as between one man and one woman violated the Canadian Charter of Rights and Freedoms. 3 Barbeau, et al. v. Attorney General of Canada, et al., 2003 BCCA 251, available at http://www.courts.gov.bc.ca/jdb-txt/ca/03/02/2003bcca0251.htm. In so holding, the Court reformulated the definition of marriage as “the lawful union of two persons to the exclusion of all others.” Id. However, the Court suspended its decision to give the federal and provincial governments time to review and revise legislation to accord with this decision. Id. On

July 8, 2003, the British Columbia Court of Appeals lifted the stay in implementing the new definition of marriage and held that the reformulated definition of marriage took effect immediately. http://www.courts.gov.bc.ca/jdb-txt/ca/03/04/2003bcca0406.htmBarbeau, et al. v. Attorney General of Canada, et al., 2003 BCCA 406, available

at .

On January 6, 2006, the claimant and the NH entered into a samesex marriage in British Columbia. Because samesex marriages had been legal in British Columbia since July 8, 2003, the District of Columbia would recognize their marriage as valid at least since July 7, 2009, the effective date of the Jury and Marriage Amendment Act of 2009. See D.C. Code § 46405.01. Accordingly, the marriage was valid at the time of the claimant’s application for purposes of determining the claimant’s entitlement to the spouse’s benefits on the record of the NH.

Here, the claimant and the NH entered into a same-sex marriage in Ontario, Canada on September 20, 2003. Because same-sex marriages had been legal in Ontario since June 10, 2003, we conclude that the District of Columbia would recognize their marriage as valid. Accordingly, the claimant was validly married to the NH for purposes of determining the claimant’s entitlement to benefits as the widower of the NH.

CONCLUSION 

For the reasons stated above, it is our opinion that the claimant’s foreign samesex marriage to the NH was valid under District of Columbia law. Therefore, you can find claimant to be the surviving spouse of the NH for purposes of determining his entitlement to spouse’s benefits.

B. PR 15-039 Validity of a Same-Sex Marriage Performed in Ontario, Canada Under District of Columbia Law—REPLY

DATE: November 20, 2014

1. Syllabus

Because the number holder (NH) resided in Canada at the time the claimant applied for benefits, we apply District of Columbia law to determine whether they were validly married. Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. The claimant and the NH entered into a same-sex marriage in Ontario, Canada on September 20, 2003. Because same-sex marriages had been legal in Ontario since June 10, 2003, we conclude that the District of Columbia would recognize their marriage as valid. Accordingly, the claimant was validly married to the NH for purposes of determining the claimant’s entitlement to benefits as the widower of the NH.

2. OPINION

QUESTION PRESENTED

Whether W~, the claimant, and A~, the deceased numberholder (the NH), who were married in Ontario, Canada on September 20, 2003, are considered to have been married for purposes of determining the claimant’s entitlement to benefits under Title II of the Social Security Act (the Act).

OPINION

Yes. The claimant qualifies as the NH’s surviving spouse (widower). Accordingly, if the claimant meets the other criteria for entitlement, the agency should find that he is entitled to Title II benefits on the NH’s record.

BACKGROUND

The claimant and the NH entered into a same-sex marriage on September 20, 2003, in Ontario, Canada. The claimant continues to reside in Canada. On September 4, 2013, the claimant filed for Social Security benefits as the NH’s widower. You requested a legal opinion regarding whether the claimant and the NH are considered to have been married for purposes of determining the claimant’s entitlement to benefits under Title II of the Act.

ANALYSIS4

Generally, an individual is entitled to widow’s or widower’s benefits if he or she (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. Sections 202(e), 202(f) of the Act; 20 C.F.R. § 404.335. Similarly, upon the death of a person who died as a fully or currently insured individual under the 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. Section 202(i) of the Act; 20 C.F.R. § 404.391.

Here, because the NH resided in Canada at the time the claimant applied for benefits, we apply District of Columbia law to determine whether they were validly married. Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946). The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942). As pertinent here, the District of Columbia began recognizing as valid same-sex marriages entered into in other jurisdictions beginning on July 7, 2009. See Section 1287a of the Jury and Marriage Amendment Act of 2009, D.C. Code § 46-405.01 (“A marriage legally entered into in another jurisdiction between 2 persons of the same sex that is recognized as valid in that jurisdiction, that is not expressly prohibited . . . , and has not been deemed illegal . . . , shall be recognized as a marriage in the District.”). Accordingly, the recognition of same-sex marriages performed in other jurisdictions does not appear to violate a strong public policy of the District. We therefore consider whether the claimant’s and the NH’s marriage is valid under the law of Ontario, Canada.

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.). Furthermore, on July 20, 2005, the Civil Marriage Act legalized same-sex marriage throughout Canada by defining marriage as “the lawful union of two persons to the exclusion of all others.” Civil Marriage Act, S.C. 2005, c. 3, § 2.

Here, the claimant and the NH entered into a same-sex marriage in Ontario, Canada on September 20, 2003. Because same-sex marriages had been legal in Ontario since June 10, 2003, we conclude that the District of Columbia would recognize their marriage as valid. Accordingly, the claimant was validly married to the NH for purposes of determining the claimant’s entitlement to benefits as the widower of the NH.

CONCLUSION 

For the reasons stated above, it is our opinion that the claimant’s foreign same-sex marriage to the NH was valid under District of Columbia law. Therefore, the claimant can be considered the widower of the NH for purposes of determining his entitlement to benefits.

C. PR 14-166 N.~’s Entitlement to Spouse’s Benefits on the Account of Number Holder J.~, Involving the Validity of a Same-Sex Marriage Performed in Quebec, Canada Under District of Columbia Law—REPLY

DATE: September 8, 2014

1. Syllabus

The claimant and the number holder (NH) entered into a same-sex marriage in Quebec, Canada on July 18, 2008. Because same-sex marriages had been legal in Quebec since March 19, 2004 (and throughout Canada since July 20, 2005), the District of Columbia would recognize their marriage as valid.

2. OPINION

QUESTION PRESENTED

N~ (claimant) andJ.~, the number holder (NH), entered into a same-sex marriage on July 18, 2008, in Quebec, Canada.  Does the claimant qualify as the NH’s spouse for purposes of determining his entitlement to spouse’s benefits?

ANSWER 

Yes.  The claimant qualifies as the NH’s spouse.  Accordingly, if the claimant meets the other criteria for entitlement to spouse’s benefits, the agency should find that he is entitled to spouse’s benefits on the NH’s record.

BACKGROUND

The claimant and the NH entered into a same-sex marriage on July 18, 2008, in Quebec, Canada, where they continue to reside.  On February 28, 2014, the claimant filed for Social Security benefits as the NH’s spouse.  You requested a legal opinion regarding whether the claimant is the NH’s spouse for purposes of the claimant’s entitlement to benefits.

ANALYSIS

We note that our discussion of the law of Quebec, Canada is based in part on an opinion we received from the Library of Congress.  

A claimant is entitled to spousal benefits under Title II of the Act if, among other things, he or she is the spouse of an insured individual who is entitled to old-age or disability benefits. To be eligible for spousal benefits, the claimant must also show that he or she: (1) has been married to the insured individual for at least one year, shares a natural child with the insured, or is entitled to certain benefits in the month before the marriage; (2) has filed an application for spousal benefits; (3) has attained aged 62 or has in his or her care a child entitled to child’s benefits; and (4) is either not entitled to old-age or disability benefits, or is entitled to such benefits based on a primary insurance amount which is less than one-half of the spouse’s primary insurance amount.  See 42 U.S.C. § 402(b)(c); 20 C.F.R. § 404.330.  As we have not been asked to provide an opinion on whether Claimant meets these additional requirements, our opinion will focus on whether the claimant is the NH’s spouse.

   See 42 U.S.C. §§ 402(c), 416(a)(1); 20 C.F.R. § 404.330.  The claimant bears the burden of proving that he or she is in a valid marital relationship with the insured and is therefore the insured’s spouse.  See 20 C.F.R §§ 20 C.F.R. §§ 404.345, 404.704, 404.723, 404.725.  In determining the claimant’s relationship as the insured’s spouse, the agency looks to the law of the state where the insured had a permanent home at the time the claimant applied for benefits.  See 42 U.S.C.§ 416(h)(1)(A)(i).  If the insured was not domiciled in any state, the agency applies the law of the District of Columbia.  See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345; POMS GN 00210.006(B)(2).  

Here, because the NH resided in Canada at the time the claimant applied for benefits, we apply District of Columbia law to determine whether they were validly married.  Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into.  See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946).  The only exception is when the marriage is in violation of strong public policy of the District of Columbia.  Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942).  As pertinent here, the District of Columbia began recognizing as valid same-sex marriages entered into in other jurisdictions beginning on July 7, 2009.  See Section 1287a of the Jury and Marriage Amendment Act of 2009, D.C. Code § 46-405.01 (“A marriage legally entered into in another jurisdiction between 2 persons of the same sex that is recognized as valid in that jurisdiction, that is not expressly prohibited . . . , and has not been deemed illegal . . . , shall be recognized as a marriage in the District.”).  Accordingly, the recognition of same-sex marriages performed in other jurisdictions does not appear to violate a strong public policy of the District.  We therefore consider whether the claimant’s and the NH’s marriage is valid under the law of Quebec, Canada. 

Same-sex marriages have been legal in Quebec since March 19, 2004.  See Catholic Civil Rights League v. Hendricks, [2004] R.J.Q. 851, 238 D.L.R. (4th) 577, 2004 CanLII20538 (Q.C.C.A.), http://www.canlii.org/en/qc/qcca/doc/2004/2004canlii20538/2004canlii20538.htmlvisited Sept. 3, 2014).  Indeed, they have been legal in all Canadian provinces since July 20, 2005, the effective date of the Civil Marriage Act, a federal statute.   See Civil Marriage Act, S.C. 2005, c. 33, http://laws-lois.justice.gc.ca/eng/acts/c-31.5/page-1.htmlvisited Sept. 3, 2014).   Section 2 of the Civil Marriage Act states that “[m]arriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.”  Id., c. 33, § 2.  For “greater certainty,” the Act goes on to state that “a marriage is not void or voidable by reason only that the spouses are of the same sex.”  Id., c. 3, § 4.

Here, the claimant and the NH entered into a same-sex marriage in Quebec, Canada on July 18, 2008.  Because same-sex marriages had been legal in Quebec since March 19, 2004 (and throughout Canada since July 20, 2005), we conclude that the District of Columbia would recognize their marriage as valid.  Accordingly, the claimant was validly married to the NH for purposes of determining the claimant’s entitlement to spouse’s benefits. 

CONCLUSION 

For the reasons stated above, it is our opinion that the claimant’s foreign same-sex marriage to the NH was valid under District of Columbia law.  Therefore, you can find claimant to be the surviving spouse of the NH for purposes of determining his entitlement to spouse’s benefits.  

D. PR 14- 119 R.~ – Entitlement to Lump Sum Death Payment on the Account of Number Holder D.~ – Validity of Same-Sex Marriage Performed in a British Columbia, Canada, Under District of Columbia Law

DATE: June 17, 2014

1. SYLLABUS

The claimant and the number holder (NH) were married in Victoria, British Columbia, Canada and living in Ottawa, Ontario, Canada on the date of the NH’s death. The claimant’s foreign same sex marriage to the NH was valid under District of Columbia law.

2. OPINION

QUESTION PRESENTED

Is R.~ (claimant) the surviving spouse of D.~, the number holder (NH), where the couple entered into a same-sex marriage in British Columbia, Canada?

OPINION

Yes. The claimant is the surviving spouse of the NH. Accordingly, if the claimant meets the other criteria for entitlement to the Lump Sum Death Payment (LSDP), 5 the agency could find that he is entitled to that payment on the NH’s record as the NH’s surviving spouse.

BACKGROUND6

The claimant and the NH were married on May 29, 2004, in Victoria, British Columbia, Canada. No actions were taken to terminate the marriage prior to the NH’s death. Both the claimant and the NH were living in Ottawa, Ontario, Canada on July 28, 2013, the date of the NH’s death.

In August 2013, the claimant applied for the LSDP on the NH’s account as the NH’s surviving spouse. You requested a legal opinion as to whether the claimant is the NH’s surviving spouse.

ANALYSIS

Under section 202(i) of the Social Security Act (the Act), to be entitled to the LSDP on an insured NH’s record, a claimant must show that he or she is the NH’s widow or widower and resided in the same household with the deceased at the time of death. See also 20 C.F.R. § 404.391. Widow and widower are defined as the surviving wife and husband, respectively. See section 216(c) & (g) of the Act; see also 20 C.F.R. §§ 404.345, 404.346.

At the time of the NH’s death, the parties were living in Canada, a foreign jurisdiction. Under these circumstances, we decide surviving spouse status by applying District of Columbia law to determine whether the foreign same-sex marriage was valid at the time of the NH’s death . See section 216(h)(1)(A)(i) of the Act; 20 C.F.R. § 404.345, POMS GN 00210.006(B)(2). Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946). The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942)..

In the District of Columbia, marriage historically was defined as the voluntary union of one man and one woman. See Dean v. District of Columbia, 653 A.2d 307, 315 (D.C. 1995) (“Our task, however, is to determine what the legislature intended ‘marriage’ to mean when the marriage statute was enacted, codified, or amended. Given the statutory language used, buttressed by the usual definition of ‘marriage,’ we cannot conclude that any legislature for the District of Columbia that has addressed the marriage statute has ever intended to authorize same-sex unions.”). Despite this historic definition, the District of Columbia began recognizing same-sex marriages legally entered into in other jurisdictions beginning on July 7, 2009. See Section 1287a of the Jury and Marriage Amendment Act of 2009, D.C. Code § 46–405.01 (“A marriage legally entered into in another jurisdiction between 2 persons of the same sex that is recognized as valid in that jurisdiction, that is not expressly prohibited . . . , and has not been deemed illegal . . . , shall be recognized as a marriage in the District.”). To determine whether the District of Columbia would recognize the claimant and the NH’s marriage as valid, we must determine whether the marriage was valid in British Columbia, Canada at the time it was entered into.

On May 1, 2003, the Court of Appeals for British Columbia, Canada held that the definition of marriage as between one man and one woman violated the Canadian Charter of Rights and Freedoms. 7 Barbeau, et al. v. Attorney General of Canada, et al., 2003 BCCA 251, available at http://www.courts.gov.bc.ca/jdb-txt/ca/03/02/2003bcca0251.htm. In so holding, the Court reformulated the definition of marriage as “the lawful union of two persons to the exclusion of all others.” Id. However, the Court suspended its decision to give the federal and provincial governments time to review and revise legislation to accord with this decision. Id. On

July 8, 2003, the British Columbia Court of Appeals lifted the stay in implementing the new definition of marriage and held that the reformulated definition of marriage took effect immediately. Barbeau, et al. v. Attorney General of Canada, et al., 2003 BCCA 406, available

at http://www.courts.gov.bc.ca/jdb-txt/ca/03/04/2003bcca0406.htm.

On May 29, 2004, the claimant and the NH entered into a same-sex marriage in British Columbia. Because same-sex marriages had been legal in British Columbia since July 8, 2003, almost a year before the claimant and the NH got married, the District of Columbia would recognize their marriage as valid at least since July 7, 2009, the effective date of the Jury and Marriage Amendment Act of 2009. See D.C. Code § 46405.01. Accordingly, the marriage was valid at the time of the NH’s death for purposes of determining the claimant’s entitlement to the LSDP as the NH’s surviving spouse.

CONCLUSION

For the reasons stated above, it is our opinion that the claimant’s foreign same-sex marriage to the NH was valid under District of Columbia law. Therefore, you can find claimant to be the surviving spouse of the NH for purposes of the LSDP.

Nora Koch

Acting Regional Chief Counsel, Region III

By: _________________

Elizabeth A. Corritore

Assistant Regional Counsel


Footnotes:

[1]

We note that our discussion of the law of British Columbia, Canada is based in part on an opinion we received from the Library of Congress.

[2]

To be eligible for spousal benefits, the claimant must also show that he or she: (1) has been married to the insured individual for at least one year, shares a natural child with the insured, or is entitled to certain benefits in the month before the marriage; (2) has filed an application for spousal benefits; (3) has attained aged 62 or has in his or her care a child entitled to child’s benefits; and (4) is either not entitled to old-age or disability benefits, or is entitled to such benefits based on a primary insurance amount which is less than one-half of the spouse’s primary insurance amount. See 42 U.S.C. § 402(b)(c); 20 C.F.R. § 404.330. As we have not been asked to provide an opinion on whether Claimant meets these additional requirements, our opinion will focus on whether the claimant is the NH’s spouse.

[3]

The Canadian Charter of Rights and Freedoms is part of the Canadian Constitution and sets out the rights and freedoms of all Canadians. See http://www.parl.gc.ca/About/Parliament/Education/OurCountryOurParliament/html_booklet/canadian-charter-rights-and-freedoms-e.html.

[4]

.We note that our discussion of the law of Ontario, Canada is based in part on an opinion we received from the Library of Congress.

[5]

. If a person is fully or currently insured when he or she dies, a LSDP of $255 may be paid to the widow or widower of the deceased if the widow or widower applies for the payment within two years of the NH’s death, and if he or she was living in the same household with the NH at the time of his or her death. 20 C.F.R. §§ 404.390, 404.391 (2013). According to your Report of Contact, the claimant met the Living in Same Household requirement at the time of the NH’s death. In addition, the claimant applied for the