In re Estate of Ranftle, decided last week by the New York County Surrogate's Court, seems to me to reach exactly the right result. H. Kenneth Ranftle married J. Craig Leiby in Canada in June 2008. In November, he died, and was survived by Leiby and by three siblings.
The immediate question before the court was who was "entitled to receive process under SCPA 1403(1)(a), but since that refers to the "distributees" — those who would inherit under intestate succession — the procedural question included the substantive one: Should Leiby be treated as a surviving spouse? And this substantive question also applies to the more important situations where someone dies without a will, and the question is where the property goes (and not just who is notified about the probate when someone does have a will, as seemed to be the issue here). Yes, the court said:
Marriages valid where solemnized have long been recognized in New York; exceptions exist only for marriages affirmatively prohibited by New York law, or proscribed by "natural law" (Matter of May, 305 NY 486 ). [Footnote: The "natural law" exception is generally limited to cases of incest and polygamy or where the marriage violates the state's public policy (Martinez v. County of Monroe, 50 AD3d at 191). It is noted that Governor David Paterson has instructed New York state agencies to recognize same-sex marriages that were valid where performed, through an Executive Directive dated May 14, 2008.] As decedent's marriage was valid under the laws of Canada, where performed, and falls into neither exception to the general rule, the marriage is entitled to recognition in New York (Martinez v. County of Monroe, 50 AD3d 189 [4th Dept 2008]) (recognizing Canadian same-sex marriage for purposes of entitlement to spousal health care benefits).
This strikes me as precisely correct. New York statutes do not bar recognition of out-of-state marriages. Neither do New York common-law principles; the "natural law" reference is indeed shorthand for "cases involving polygamy or incest in a degree regarded generally as within the prohibition of natural law." (By the way, Matter of May, which the court cites, upheld an uncle-niece marriage, which was valid under a Rhode Island statute that allowed such marriages for Jews; I expect that many people in 1953 thought such marriages to be inappropriate, and New York law in fact forbade them, but New York courts recognized the out-of-state marriage nonetheless.) The judge didn't have to do his own philosophical "natural law" reasoning to decide whether same-sex marriages are "natural" or "unnatural"; he was just reading the existing precedents no more broadly than they required.
And I think such a preference for recognizing foreign marriages that were legal in the place where they were entered into — a preference that is itself a long-standing legal principle — makes perfect sense, especially when it comes to intestate succession. Someone dies. He should have had a will, but he didn't, and it's too late for should-haves now. The legal system's goal should be to give the property to those to whom he would have most likely wanted to leave it, so long as this can be done without excessive fact-finding of the "Mother loved me best" variety. It's a fair bet that people would like to leave their property to their spouses; and that's true even if the law of the state wouldn't itself allow such a marriage.
You can like the marriage or dislike it, support uncles marrying nieces or oppose it, but when it comes to distributing the dead person's property, the focus should be (again, where it is consistent with the demands of clarity and minimal factfinding cost) on what the dead person would have wanted, not what the judge or the voters would have wanted. I'm not saying there's a constitutional obligation to do it — just that this is the soundest legal principle.
By the way, if you ask "But what about polygamy?," there's already an answer: In re Bir's Estate, in which the California Court of Appeal held — in 1948 — that California would recognize a foreign polygamous marriage (from India) for the purposes of intestate succession. Though California public policy might lead to a different result "if decedent had attempted to cohabit with his two wives in California" — remember that this was a time when cohabitation with someone who wasn't your legal wife could be criminal — "[w]here only the question of descent of property is involved, 'public policy' is not affected." Both wives were thus allowed to share equally in the decedent's property.
What's more, earlier cases took a similar view, especially as to the question whether the children of the second and later wives were to be treated as legitimate, back when more legal rules turned on legitimacy. These matter came up in some cases involving American Indian tribes, as well as marriages recognized in foreign countries. And the skies didn't fall, nor would they have, I think, if such cases had been more common.
UPDATE: I originally read the opinion as suggesting that Ranftle died intestate, because of the reference to the law of intestate succession at the end. But as a commenter pointed out, the opinion clearly says that Ranftle had a will. In any case, though, the significant legal consequence of this decision is that precisely the same reasoning would apply to intestate succession (where it would be considerably more important than for probate of a will). In any event, I've corrected the discussion of the facts -- my analysis of the law is the same as before.