Whether two residents of British Columbia, Canada, satisfy the relationship requirement
for purposes of widower’s benefits based on a marriage-like relationship.
Yes. In this case, because the claimant and the number holder (NH) lived with each
other in a marriage-like relationship for longer than two years, the agency can find
that they satisfy the relationship requirement for purposes of Social Security widower’s
SUMMARY OF EVIDENCE
The claimant, J~, filed for widower’s benefits and the lump sum death payment on the
record of the NH, B~. As part of the claim, the claimant completed a Statement of
Marital Relationship form over the telephone. According to the claimant, he was in
a same-sex, marriage-like relationship with the NH since January 1990. They lived
together in N~, British Columbia, Canada for over twenty-three years. They never married
but held themselves out as “life partners” with the understanding that they would
live together forever. The NH died on September XX, XXXX.
As evidence of their relationship, the claimant has submitted a variety of illustrative
Canadian 2012 tax return summary estimate for 2013;
Canadian T3 trust income tax and information return for the W~ Family Trusts for 2003;
Last Will and Testament of NH dated February XX, XXXX;
Power of Attorney for NH dated February XX, XXXX, appointing claimant as NH’s primary
State of Title Certificate for claimant and NH issued in June 2002;
The 2004 Rural Property Tax Notice issued to claimant and NH;
Joint financial account from TD Canada Trust as of May XX, XXXX, and May XX, XXXX;
Joint TD Waterhouse account as of November XX, XXXX and May XX, XXXX.
I. Law Concerning Same-Sex Marriages
Generally, an individual is entitled to widow’s or widower’s benefits if that 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. 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, at the time of the NH’s death, the NH was domiciled in British Columbia, Canada.
Because the NH was not domiciled in the United States when he died, we apply the laws
that the District of Columbia courts would apply to determine whether a valid marriage
existed 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 00210.066B.2.a. 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).
As pertinent here, the District of Columbia began formally recognizing the validity
of 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, it is clear that from July 7, 2009, the recognition of same-sex marriages performed in other jurisdictions does not
appear to violate a strong public policy of the District of Columbia.
Same-sex marriages have been valid in British Columbia, Canada, since May 1, 2003,
when the British Columbia Court of Appeal recognized same-sex marriage but 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.” Barbeau v. British Columbia (Attorney General),  B.C.C.A., 251, para. 7. However, on July 8, 2003, the Court lifted the suspension, giving full effect to its decision. Barbeau v. British Columbia,  B.C.C.A., 406. Thus, same-sex marriages became legal in British Columbia
at least as of July 8, 2003.
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,” 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. 3, § 4 (Can.).
However, here there is no allegation that a common-law or ceremonial same-sex marriage
occurred between the claimant and the NH.
II. Law Concerning Other Types of Same-Sex Relationships
If the claimant cannot be entitled to widower’s benefits based on a marriage to the
NH, the claimant may nevertheless be deemed to be the widower, if, under the law applied
by the courts of the District of Columbia in determining the devolution of intestate
personal property, the claimant would have the “same status” as a widower of the NH
with respect to the taking of such property, if the NH were to die. See § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345. Under District of Columbia law, intestate
inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). As previously noted, the claimant and the NH lived
together in British Columbia, Canada. Accordingly, to determine whether this relationship
would allow the claimant to have the requisite status as a spouse with respect to
inheritance of the NH’s intestate property, we apply the law of British Columbia,
British Columbia’s Estate Administration Act, and the subsequent Wills, Estates, and
Succession Act, which came into force on March 31, 2014, provide the rules for intestate succession. The Estate Administration Act’s definition of spouse included “common law spouse,”
which meant either:
(a) A person who is united to another person by a marriage that, although not a legal
marriage, is valid by common law, or
(b) a person who has lived and cohabitated with another person in a marriage-like
relationship, for a period of at least two years immediately before the person’s death.
Estate Administration Act, S.B.C. 1996, c. 122, pt. 1, available at:
http://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-122/104764/rsbc-1996-c-122.html#Part_1_General_498. The Wills, Estates and Succession Act does not refer to “common law spouse,” and
instead states, “2 persons are spouses of each other for purposes of this Act if they
were both alive immediately before a relevant time and (a) they were married to each
other, or (b) they had lived with each other in a marriage-like relationship for at
least 2 years.” Wills, Estates and Succession Act, S.B.C. 2009, c. 13, pt. 2, available at
The expression “marriage-like relationship” is found in a number of British Columbia’s
statutes that deal with the rights and obligations of unmarried couples. British Columbia’s
Court of Appeal has held that the expression should be interpreted the same across
statutes in “all cases where it is used to describe the status of two persons who
have chosen to live together in a certain way.” Austin v. Goerz (2007) 74 B.C.L.R. 4th 39, para. 32 (Can. B.C. C.A.), available at: https://www.canlii.org/en/bc/bcca/doc/2007/2007bcca586/2007bcca586.html?searchUrlHash=AAAAAQA0bWFycmlhZ2UtbGlrZSByZWxhdGlvbnNoaXAgY29tbW9uIGxhdyBHb3N0bGluIFRha2FjcwAAAAAB.
Thus, it appears that under the law of British Columbia, a partner of a NH in a “marriage-like
relationship” would have the “same status” as a widower of the NH with respect to
the inheritance of the NH’s intestate personal property. See § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.
The legal test for determining whether a particular relationship is “marriage-like”
is whether it was the parties’ subjective intention to be in a “marriage-like relationship.”
Gostlin v. Kergin (1986), 3 B.C.L.R. 2d 264, page 5 (Can. B.C. C.A.), available at: https://www.canlii.org/en/bc/bcca/doc/1986/1986canlii164/1986canlii164.html. In Gostlin, the Court stated:
If each partner had been asked, at any time during the relevant period of more than
two years, whether, if their partner were to be suddenly disabled for life, would
they consider themselves committed to life-long financial and moral support of that
partner, and the answer of both of them would have been “Yes”, then they are living
together as husband and wife. If the answer would have been “No”, then they may be
living together, but not as husband and wife.
Id. at 5. However, the Court notes that sometimes ascertaining intention can prove difficult
in particular circumstances, in which case objective factors can be relied upon:
Did the couple refer to themselves, when talking to their friends, as husband and
wife, or as spouses, or in some equivalent way that recognized a long-term commitment?
Did they share the legal rights to their living accommodation? Did they share their
property? Did they share their finances and their bank accounts? Did they share their
vacations? In short, did they share their lives? And, perhaps most important of all,
did one of them surrender financial independence and become economically dependent
on the other, in accordance with a mutual arrangement?
Id. at 6.
The Court enunciated additional factors indicating a “marriage-like relationship”
in Takacs v. Gallo (1998), 48 B.C.L.R. 3d 265 (Can. B.C. C.A.), available at: http://www.canlii.org/en/bc/bcca/doc/1998/1998canlii6429/1998canlii6429.html
In that case, the Court held that courts must focus first on the intentions of the
parties to live in a marriage-like relationship, using objective factors to divine
those subjective intentions. Id. para. 53. The Court noted that although the parties may not explicitly acknowledge
that a marriage-like relationship exists, “conduct speaks louder than words.” Id. para. 40.
Objective factors that may be relevant in determining the parties’ intentions are
seldom determinative in and of themselves; many people who live together, and meet
many of these objective criteria, do not actually intend or enter the kind of psychological
and emotional union generally associated with marriage. Id. para. 55. Therefore, courts must recognize the uniqueness of each relationship and
apply a flexible approach when considering the various objective criteria provided
in the authorities. J.J.G. v. K.M.A. (2009), 71 R.F.L 6th 349, para. 37 (Can. B.C. S.C.), available at:
III. The Claimant’s Application
The claimant and the NH had a marriage-like relationship that lasted for much longer
than the two-year period required under the law. They lived together for more than
twenty-three years and held themselves out as “life partners.” The documents the claimant
submitted showed they comingled finances, jointly owned real property, and filed taxes
as common-law spouses. They also created a family trust with their separate children
as equal shareholders in the trust. Further, the NH named the claimant as executor
and trustee of this estate upon his death, but in the event the claimant could not
exercise these duties, the NH named his son and the claimant’s son to jointly act
as executor and trustee. All of this evidence shows that this couple was in a marriage-like
relationship and therefore were spouses for purposes of British Columbia’s law of
It is our opinion that under the laws of British Columbia, Canada, the claimant and
the NH were in a marriage-like relationship and would be considered spouses for purposes
of intestate succession. Thus, the agency can deem that the couple was married for
social security purposes. Accordingly, assuming all the other eligibility requirements
are met, the claimant may be entitled to benefits as the NH’s widower.