Issue
Whether New Jersey would recognize the same-sex Canadian marriage of H~ (Claimant)
and P~, the number holder (NH), for the purpose of determining whether Claimant is
entitled to widower’s benefits and the lump-sum death payment (LSDP) on the NH’s record.
Short Answer
New Jersey would recognize the 2004 Canadian same-sex marriage between the Claimant
and the NH as a civil union as of February 19, 2007. Under New Jersey intestacy law,
a civil union partner can inherit a spouse’s share of a number holder’s personal property,
and, therefore, SSA treats the civil union as a marital relationship for determining
entitlement to widower’s benefits and the LSDP. Thus, the Claimant is entitled to
receive widower’s benefits and the LSDP on the NH’s record, assuming that the Claimant
has satisfied the other statutory and regulatory requirements for such benefits.
Background[3]
Claimant and the NH were lawfully married on February XX, 2004 in Ontario, Canada,
and remained married until the date of the NH’s death. The NH died on January XX,
2011, and was a permanent resident of the State of New Jersey on the date of his death.
Claimant applied for widower’s benefits and the LSDP on the NH’s record on December
XX, 2012. On January XX, 2013, the agency denied the claim because it did not satisfy
the marriage requirements of the Social Security Act (Act). Claimant filed a request
for reconsideration on March XX, 2013, which was denied on June XX, 2013.
On August XX, 2013, Claimant requested a hearing before an Administrative Law Judge
(ALJ).
Discussion
Social Security Act and Regulations
To receive benefits as the widower of an insured wage earner, a claimant must, among
other requirements, have been in a valid marital relationship for at least 9 months
immediately prior to the insured’s death.[4] 42 U.S.C. §§ 402(f) and 416(g) (defining “widower”), 416(h)(1)(A); 20 C.F.R. §§ 404.335(a)(1);
404.344-45. A widower who was living in the same household as the deceased is entitled
to the LSDP if the claimant and insured were in a marital relationship, as defined
by SSA. 42 U.S.C. § 402(i) and 416(g); 20 C.F.R. §§ 404.345, 404.391. SSA looks to
the laws of the state where the insured had a permanent home at the time of his death
to determine whether the claimant and insured were validly married. 42 U.S.C. § 416(h)(1)(A)(i);
20 C.F.R. § 404.345.
The Program Operations Manual System (POMS) provides that non-marital legal relationships,
such as a civil union or domestic partnership, can be treated as marital relationships
for the purpose of determining entitlement to benefits. POMS GN 00210.004.A; see GN 00210.600 (regarding the LSDP). A claimant’s non-marital legal relationship will satisfy the
relationship requirement for entitlement to benefits if: (a) the relationship was
valid in the place it was established, and (b) it qualifies as a marital relationship
using the law of the state of the number holder’s domicile. POMS GN
00210.004.B. A non-marital legal relationship will qualify as a marital relationship if, under
the intestacy law of the state of the number holder’s domicile at the time of the
number holder’s death, a claimant could inherit a spouse’s share of the number holder’s
personal property if the number holder died without leaving a will. POMS GN 00210.004.A, B.2.
The POMS provides that from February 19, 2007 through October 20, 2013, New Jersey
recognized same-sex marriages from other states as civil unions. POMS GN 00210.004.D New Jersey; GN 00210.003.A, B.5 New Jersey.
Canadian Law Regarding Same-Sex Marriage
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. A same-sex marriage performed in Ontario, Canada subsequent to June 10, 2003 is therefore
a valid marriage in that jurisdiction. Finally, there appears to be no Canadian residency
requirement to be married in Canada. On June 26, 2013, the Canadian Parliament amended
the Civil Marriage Act, specifically recognizing civil marriages of non-resident persons:
A marriage that is performed in Canada and that would be valid in Canada if the spouses
were domiciled in Canada is valid for the purposes of Canadian law even though either
or both of the spouses do not, at the time of the marriage, have capacity to enter
into it under the law of their respective state of domicile.
Civil Marriage Act, S.C. 2013, c. 30, pt. 1, § 5.
New Jersey State Law Regarding Same-Sex Marriage
On December 21, 2006, the New Jersey Legislature enacted the Civil Union Act, which
created civil unions for same-sex couples, effective February 19, 2007. See N.J. Stat. Ann. § 37:1-28, et. seq. On February 16, 2007, the New Jersey Attorney General issued an opinion stating that
same-sex relationships validly established under the laws of other States and foreign
nations would be recognized, beginning on February 19, 2007, either as a valid civil
union or domestic partnership, but not as a same-sex marriage. Recognition in New Jersey of Same-Sex Marriages, Civil Unions, Domestic Partnerships
and Other Government-Sanctioned, Same-Sex Relationships Established Pursuant to the
Laws of Other States and Foreign Nations, N.J. Att’y Gen. Op. 3-2007 (Feb. 16, 2007), available at http://www.nj.gov/oag/newsreleases07/ag-formal-opinion-2.16.07.pdf (Formal Opinion 3-2007). New Jersey courts held that Formal Opinion 3-2007 was entitled
to judicial deference. See Quarto v. Adams, 929 A.2d 1111, 1117 (N.J. Super. Ct. App. Div. 2007).
On June 26, 2013, the U. S. Supreme Court struck down Section 3 of the federal Defense
of Marriage Act as unconstitutional and held that the Federal Government was required
to provide the same rights and responsibilities to same-sex couples who were married
under state law as to married couples of the opposite sex. United States v. Windsor, 570 U.S. 12 (2013). On September 27, 2013, the New Jersey courts found that civil
union partners were denied equal access to federal benefits, and held that New Jersey
must extend the right to civil marriage to same-sex couples. Garden State Equality v. Dow, 82 A.3d 336, 369 (N.J. Sup. Ct., 2013), stay denied 79 A.3d 479, certification granted 75 A.3d. 1157, stay denied 79 A.3d. 1036. An order accompanying the Garden State decision directed state officials to allow same-sex couples who qualified for civil
marriage to marry in New Jersey beginning on October 21, 2013. See Id. As of the date of this Memorandum, no bill has been enacted into law in New Jersey
regarding the retroactive recognition of same-sex marriages established under the
laws of other jurisdictions.
New Jersey State Law Regarding Intestacy
Pursuant to the New Jersey Civil Union Act, the laws relating to intestate succession
for legally-married couples “shall apply in like manner to civil union couples.” N.J.
Stat. Ann. § 37:1-32 (West 2015). Under New Jersey intestacy law, a surviving spouse
will inherit a spouse’s share of a decedent’s personal property if the decedent died
without leaving a will. See N.J. Stat. Ann. § 3B:5-3 (West 2015). Thus, under New Jersey law, a civil union partner
could inherit a spouse’s share of a decedent’s personal property if the decedent died
intestate. N.J. Stat. Ann §§ 37:1-32; 3B:5-3; see POMS GN 00210.004.D. (stating that New Jersey law provides spousal inheritance rights to civil union
partners).
Analysis
The Claimant and NH entered into a valid same-sex marriage in Ontario, Canada on February
XX, 2004, and remained married until the NH’s death on January XX, 2011. The NH was
domiciled in the State of New Jersey on the date of his death, and thus, SSA will
look to New Jersey law to determine whether the Claimant can collect widower’s benefits
and the LSDP on the NH’s account. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345.
From February 19, 2007 through October 20, 2013, New Jersey recognized same-sex marriages
from other states as civil unions. POMS GN 00210.004.D New Jersey; GN 00210.003.A, B.5 New Jersey. As discussed above, the New Jersey Attorney General’s opinion
provided that New Jersey would recognize same-sex marriages from foreign nations as
civil unions, as of February 19, 2007. Formal Opinion 3-2007. Thus, New Jersey would
have recognized the Claimant’s Canadian marriage as a civil union.
SSA recognizes a non-marital legal relationship, such as a civil union, as a marital
relationship for the purpose of determining eligibility for benefits if, under the
intestacy law of the state of the NH’s domicile at the time of the NH’s death, a claimant
could inherit a spouse’s share of the NH’s personal property if the NH died intestate.
POMS GN 00210.004.A, B. Under New Jersey law, a partner in a civil union could inherit a spouse’s share
of a decedent’s personal property if the decedent died intestate, and thus, the civil
union is considered a marital relationship for the purpose of determining whether
the Claimant is eligible for widower’s benefits and the LSDP. N.J. Stat. Ann §§ 37:1-32;
3B:5-3; see POMS GN 00210.004.D (stating that New Jersey law provides spousal inheritance rights to civil union
partners). The Claimant and NH were in a relationship New Jersey recognized as a valid
civil union for over 9 months prior to the NH’s death, and thus, assuming that the
claimant has satisfied the other statutory and regulatory requirements for such benefits,
he is entitled to receive widower’s benefits and the LSDP on the NH’s account.
Conclusion
New Jersey recognized Claimant’s Canadian marriage to the NH as a valid civil union
as of February 19, 2007. Because New Jersey civil unions confer intestacy rights,
SSA recognizes a New Jersey civil union as a marital relationship for the purpose
of satisfying the marital relationship requirement for widower’s benefits and the
LSDP. Thus, the Claimant is entitled to widower’s benefits and the LSDP on the NH’s
record, assuming that the Claimant has satisfied the other statutory and regulatory
requirements for such benefits.