Wednesday, February 04, 2009

New York Estate Court Recognizes Canadian Same Sex Marriage

In a decision released yesterday, a second court in New York State has recognized the validity of a Canadian same-sex marriage. reports:

Recognizing the validity of a same-sex marriage between New Yorkers contracted in Canada, a Manhattan surrogate has ruled that a man is entitled to inherit the entire estate of his deceased male partner. The decision comes months after a Queens surrogate took a more cautious approach in holding that the validity of gay marriage had not been "definitely determined," ruling that the deceased partner's parents had to be included in probate proceedings.

Also see Family Law Prof Blog on this decision - Surviving Same -Sex Partner in Canadian marriage ruled "spouse"

In a brief opinion, a Surrogate Judge in New York recognized a Canadian same-sex marriage for probate purposes, declaring the surviving partner the "surviving spouse and sole distributee" and thus not requiring process to other members of the decedent's family. A copy of the Kristin Booth Glen's opinion, published in the New York Law Journal, page 27, today, is available here and the front-page article is available here, and continued here.

This ruling is consistent with a February 2008 New York appellate decision in Martinez v. Monroe, a landmark ruling that for the first time recognized a Canadian same-sex marriage as legally valid in the state.

In November, Monroe County abandoned its plans to appeal that ruling.

Based on these two decisions, it appears for the time being that New York State does indeed recognize the validity of Canadian same-sex marriages. The true test, however, may come when the State's courts determine whether they have jurisdiction to grant a same-sex divorce to a couple legally married in another jurisdiction.

We reported in December, 2007 on a 3-2 decision of the Rhode Island Supreme Court on this issue:

[The court] held that it lacked jurisdiction to grant a divorce to a same-sex couple that married in Massachusetts, but had moved to that State. In short, the court declined jurisdiction because Rhode Island does not recognize same sex marriages.

- Garry J. Wise, Cancun

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