Same-Sex Marriages and the Marriage Recognition Rule
April 19, 2011
A recent decision of the Appellate Division, First Department, demonstrates that notwithstanding the New York State Legislature’s failure to enact legislation authorizing same-sex marriages in New York State, the Surrogate’s Courts will still recognize such marriages pursuant to the so-called “marriage recognition rule.”
In Matter of Ranftle, 81 AD2d 566 (1st Dept 2011), the Appellate Division was called upon to determine the propriety of an order of the Surrogate’s Court, New York County (Kristen Booth Glen, S.), denying the vacatur of a decree admitting a will to probate. In his will, the decedent made bequests to three brothers and a goddaughter. He left his residuary estate to his same-sex partner, the respondent on the appeal. Respondent and the decedent had married in Canada two months prior to the execution of the decedent’s will. The decedent nominated respondent as the executor of his estate. Respondent, as the executor named in the will, commenced a probate proceeding, identifying himself as the decedent’s surviving spouse and sole distributee of the decedent’s estate. Respondent subsequently served the legatees with notice of probate, and the Surrogate’s Court ultimately issued a decree granting probate of the will.
The Surrogate’s Court issued an opinion finding that respondent was “decedent’s surviving spouse and sole distributee” and, accordingly, determined that service of process in the probate proceeding was not required to issue to anyone under SCPA § 1403(1)(a), which enumerates those entitled to service of process in probate proceedings. The court found that the decedent’s same-sex marriage to respondent was valid under Canada law and did not fall into either of the two exceptions to the “marriage recognition rule,” as the marriage was not affirmatively prohibited or “proscribed by natural law.” Accordingly, the court found that the marriage was entitled to recognition.
One of the decedent’s brothers, the appellant in the appeal, sought vacatur of the probate decree, asserting that the marriage was not entitled to recognition by the court as it violated New York public policy. Accordingly, appellant argued that the decedent’s three brothers were the sole distributees of the estate and therefore entitled to process in the probate proceeding. The Surrogate’s Court denied the petition for vacatur.
The Appellate Division affirmed the Surrogate’s order. It explained that New York’s “marriage recognition rule affords comity to out-of-state marriages and ‘recognizes as valid a marriage considered valid in the place where celebrated’” (id., quoting Van Voorhis v Brintnall, 86 NY 18, 25 ). The court also noted, however, that the rule does not apply where the foreign marriage is “‘contrary to the prohibitions of natural law or the express prohibitions of a statute’” (id., quoting Moore v Hegeman, 92 NY 521, 524 ). However, same-sex marriage, according to the court, does not fall within either of the two exceptions to the marriage recognition rule (see id.).
The Appellate Division expressly rejected appellant’s argument that the Legislature’s failure to enact a bill authorizing same-sex marriages demonstrates that such marriages are against the public policy of the State. The court made clear that the Legislature’s failure to enact a bill “‘affords the most dubious foundation for drawing positive inferences’” (id., quoting Clark v Cuomo, 66 NY2d 185, 190-191 ).
Notably, in denying the petition for vacatur, the Surrogate relied upon the decision of the Appellate Division, Fourth Department, in Martinez v County of Monroe, 50 AD3d 189 [4th Dept 2008], lv. dismissed, 10 NY3d 856 [2008). There, the Appellate Division held that a Canadian same-sex marriage was entitled to recognition for purposes of the laws governing spousal health care benefits. The court determined that there is no legislation in the State prohibiting the recognition of same-sex marriages validly entered into outside of New York and, thus, the “positive law” exception to the marriage recognition rule does not apply. Moreover, the court determined that the “natural law” exception to the rule also does not apply to same-sex marriages, as that exception has generally been limited to marriages involving polygamy or incest, or marriages “offensive to the public sense of morality to a degree regarded generally with abhorrence” (id., quoting Matter of May, 305 NY 486, 493), which would not include a same-sex marriages.
The Appellate Division in Ranftle agreed with the Surrogate’s Court that the appellant’s “public policy” argument was specifically addressed and rejected by the Martinez court.
Thus, while the New York State Legislature has not seen fit to enact legislation authorizing same-sex marriages, it also has not enacted legislation prohibiting the recognition of such marriages validly entered into outside of the State. Accordingly, same-sex spouses may well be entitled to the rights and benefits generally afforded to heterosexual spouses, whether they be spousal health-care benefits or inheritance rights.