QUESTION PRESENTED
Is R~ (Claimant) entitled to widow’s benefits on the record of the deceased number
holder (NH), B~, based on a March XX, 2004 marriage in Multnomah County, Oregon?
BRIEF ANSWER
Yes. We believe Claimant is NH’s widow because Washington would consider her 2004
Oregon marriage to the NH valid.
SUMMARY OF FACTS
Claimant and NH, a same-sex couple, were in a relationship since at least the 1990s.
In Claimant’s will, dated March XX, 1990, Claimant bequeathed all of her property,
including her house, to NH if she survived Claimant. Subsequently, in a quitclaim
deed recorded on February XX, 1992, in the real property records of K County, Washington,
Claimant quitclaimed real property to herself and NH, as joint tenants with rights
of survivorship, in consideration of “love and affection.”
Claimant and NH obtained a marriage license in Multnomah County, Oregon, on March
XX, 2004, as certified by a marriage certificate. The marriage certificate further
shows that a minister married Claimant and NH in the presence of two witnesses on
March XX, 2004.
The couple legally married in Washington State on October XX, 2013. NH passed away
on February XX 2014, less than nine months after her Washington marriage to Claimant.
The couple were domiciled in Washington at NH’s death. Claimant has applied for widow’s
benefits on NH’s record.
ANALYSIS
A. Federal Law
To be entitled to widow’s or widower’s benefits under Title II of the Social Security
Act (Act), a claimant must establish that she or he is the widow or widower of an
individual entitled to old-age or disability insurance benefits and that the relationship
has lasted at least one year. 42 U.S.C. §§ 402(e),(f), 416(c),(g); 20 C.F.R. § 404.335.
The Social Security Administration (SSA) will find a claimant to be the widow or widower
of an insured individual if the courts of the State in which the insured individual
was domiciled at the time of his or her death would find that the claimant was validly
married to the insured individual when the death occurred. 42 U.S.C. § 416(h)(1)(A)(i).
In this case, at the time of death, the NH was domiciled in Washington State. Because
NH died less than nine months after her Washington marriage to Claimant, the Washington
marriage does not satisfy the durational requirement of 42 U.S.C. § 416(c). Claimant
has not alleged any exception to the durational requirement, and it does not appear
that any such exception applies. Thus, we must examine whether Washington would recognize
the 2004 Oregon marriage.
B. State Law
A marriage valid in the jurisdiction where contracted and consummated is a valid marriage
in the State of Washington. In re Warren, 40 Wash.2d 342 (1952). Therefore, we must determine if the 2004 Oregon marriage
would be considered valid in Oregon.
At the time of the marriage between Claimant and NH, Oregon law did not expressly
provide for same-sex marriages. However, the Chair of the Multnomah County Board of
Commissioners ordered the Records Management Division of Multnomah County to issue
marriage licenses to same-sex couples in 2004. Pursuant to those licenses, approximately
3,000 same-sex couples participated in individual marriage ceremonies. Claimant and
NH participated in such a ceremony. However, at the governor’s direction, the state
registrar refused to register documentation of those marriages on the ground that
same-sex marriages did not comport with state law.
Following suit by a number of plaintiffs, including Multnomah County and same-sex
couples, the case was decided by the Oregon Supreme Court. Li v. State, 338 Or. 376, 382 (2005), abrogated by Obergefell v. Hodges, 135 S. Ct. 2584 (2015). The Li court held that the marriage licenses were void at the time of issuance because the
County did not have authority to issue them under State law. Li, 338 Or. at 397-98. The court did not consider whether State law violated the United
States Constitution. Id. at 391, n.11.
That latter question was answered by the United States Supreme Court in 2015 in Obergefell, 135 S.Ct. at 2604-05. In Obergefell the Supreme Court held State laws invalid to the extent they exclude same-sex couples
from marriage on the same terms and conditions as opposite-sex couples. Pursuant to
Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 94-98 (1993), SSA should give Obergefell full retroactive effect in all cases still open on direct review and as to all events,
regardless of whether such events predate or postdate Obergefell. As a result, SSA will consider State-law same-sex-marriage bans, whether based on
State constitutional or statutory provisions or case law, void and ineffective. Accordingly,
under Obergefell, the Oregon State laws in effect at the time Claimant and NH were married were unconstitutional.
Likewise, the facts of Obergefell itself indicate that it applies retroactively. The named plaintiff in Obergefell, J~, traveled from Ohio to Maryland to marry his partner, J~, three months before
J died. Obergefell, 135 S. Ct. at 2594. J~ challenged Ohio’s refusal to list him as the surviving spouse
on J death certificate. Id. at 2594-95. As a result of the Court’s decision, Ohio was compelled to posthumously
recognize J~’s marriage on the death certificate, even though his spouse had been
deceased for two years at the time of the decision and even though Ohio’s State laws
did not recognize same-sex marriage at the time of marriage or death. Id. at 2607-08.
The same outcome should be reached here. The evidence indicates that Claimant and
NH satisfied the required marriage elements of the State of Oregon at the time of
the marriage. Claimant and NH obtained a marriage license. Or. Rev. St. 106.041 (1999
Oregon Laws Ch. 80 (S.B. 29)). Further, Claimant and NH participated in a ceremony
that was solemnized in the presence of at least two witnesses. Or. Rev. St. 106.150
(2001 Oregon Laws Ch. 501 (S.B. 704)); Or. Rev. St. 106.170 (2001 Oregon Laws Ch.
501 (S.B. 704)). While the county clerk may not have maintained records relating to
the marriage in the county records and while the State Registrar refused to register
documentation of the marriage, this is not the fault of Claimant and NH. Instead,
it is the result of the State’s unconstitutional law.
Accordingly, under Obergefell and Harper, we believe the marriage was lawful under the laws of the State of Oregon and thus,
SSA should find that the marriage would be recognized as lawful under the laws of
Washington, where the NH was domiciled at the time of her death.
CONCLUSION
The agency will not apply unconstitutional State laws prohibiting same-sex marriage.
Accordingly, the agency can find that Claimant’s marriage to NH on March XX, 2004,
in Oregon was valid and that Washington would recognize it. Accordingly, the agency
can find Claimant to be NH’s widow for Title II benefit purposes.