lesbian-same-sex-marriageOur office practices a great deal of matrimonial law, so it is with great interest that we read about a Broome County New York Supreme Court justice who  just granted Lauren Wells-Weiss and Shari Weiss (married in Canada) a divorce.  By doing so, it implicitly also recognized the fact that they were initially married, the first time this has happened in the marriage or divorce context in New York.

The New York Surrogate’s Court has already recognized a same-sex marriage performed in Canada for the purpose of an Administration proceeding, as reported on this site in February.

I am frankly not surprised by the recognition of Canadian same-sex marriages for the purpose of granting a divorce.  That issue is not fundamentally different from the one considered by the Surrogate’s Court. And in the recent case of Lewis v. NYS Dept. of Civil Service, 872 NYS 2d 578 (3d Dept 2009), the Appellate Division held that marriages validly performed in another jurisdiction, unless void as a matter of public policy or specifically excluded by New York’s Domestic Relations law, are recognized as valid by New York State as well.

The Court held that New York’s recognition of validly-performed foreign jurisdiction same-sex marriages do not fall into either exception to New York’s general recognition of out-of-state marriages. It pointed out that NY’s Domestic Relations law does not specifically invalidate foreign same-sex marriages. The court also clarified that  New York has only invalidated a few types of marriages based on public policy, including incestuous or  polygamous marriages, and marriages where one party was under the age of consent.

That being the case, it comes as no surprise that a situation has arisen in which a New York court has had to decide whether it may grant a divorce in the case of a Canadian same-sex marriage, a new application of an emerging pattern of foreign same-sex marriage recognition in New York.

Picture courtesy of NevadaThunder.com.

man-two-wives-brides-polygamyAs a law clerk in a law office that does a tremendous amount of Wills Trusts and Estates work, I found this story pretty interesting.

Professor Volokh at The Volokh Conspiracy reported on a New York County Surrogate’s Court case, which granted “surviving spouse” status to a “husband” whose same-sex marriage was performed in Canada. In the case of In re Estate of Ranftle, a man married another man in Quebec and they moved to Manhattan. One of them died, leaving his husband and three siblings.

The question was whether New York should recognize the Canadian same-sex marriage as valid for the purpose of giving the surviving husband the decedent’s entire estate, where the decedent died without a Will. Had he left an inheritance to his husband in a Will, this would not have been an issue. But since he did not, his property passes pursuant to New York State intestacy law under EPTL 4-1.1.

The Surrogate ruled that, pursuant to the general presumption of the validity of foreign marriages, New York should recognize any marriages performed in a foreign jurisdiction unless the marriage violates some major public policy or “Natural Law.” Case law in New York has established that this exception only applies in cases of marriages involving incest between close relatives. Also, it argued that since all that was at stake in this case was the distribution of property, there was no reason to go outside of the generally held principal of recognizing foreign or out-of-state marriages.

Interestingly, Prof. Volokh also pointed out an interesting case from 1948 in California, In re Bir’s Estate, where a man who married two wives died, where he had married both wives legally in India, where polygamy was legal at the time. The California court held that in the case of recognizing a polygamous marriage, if all that’s at stake is the distribution of property, the public policy against polygamous marriages would not cause that state to actively not recognize that marriage.

I wonder what would happen if a man married two wives today  in a country where that is legal, and then moved to New York. But let’s say the issue is not related to the distribution of his property. What if the husband got a job working for New York City or State government and the issue was whether both of his wives could receive health benefits as a spouse under his insurance plan?