TN 13 (01-20)

PR 05405.029 Montana

A. PR 19-230 Validity of Dual Proxy Marriage for Purposes of Entitlement to Spousal or Survivor's Benefits

Date: December 17, 2019

1. Syllabus

The number holder (NH) and Groom underwent a dual proxy ceremonial marriage in Montana. NH and Groom completed Affidavits in Support of Proxy Marriage in which they stated that Groom was unable to attend the marriage ceremony because he was in active military service. The information provided by NH and Groom indicates that the requirements have been met, and that a Montana court would treat the proxy marriage as valid. We do not believe the marriage by proxy between NH and Groom will affect potential entitlement to survivor’s or spousal benefits, but a separate determination may be needed if or when an application for such benefits is filed.

2. Opinion

Question

You asked whether the dual proxy ceremonial marriage between A~, the number holder (NH), and B~ (Groom) in Montana is a valid marriage for the purpose of NH changing her last name in the agency’s records. You also asked whether the dual proxy nature of the marriage could affect entitlement to spousal or survivor’s benefits in the future.

Short Answer

NH provided sufficient information to change her last name in the agency’s records. The question of whether the dual proxy nature of her marriage will affect potential entitlement to survivor’s or spousal benefits is premature, but we do not believe it will affect possible future benefits.

Background

According to the information provided, NH and Groom underwent a dual proxy ceremonial marriage in Montana. Prior to the marriage, NH and Groom completed Affidavits in Support of Proxy Marriage in which they stated that Groom was unable to attend the marriage ceremony because he was in active military service, they intended to marry without personal appearances, and they consented to marriage by proxy. [1]

NH provided certified copies of a Marriage License and Marriage Certificate issued by the State of Montana, dated February X, 2019. The Marriage License identifies NH and Groom as residents of California, and identifies NH as “A~.”

The Marriage Certificate states a minister joined NH and Groom in Marriage on February X, 2019, in the State of Montana, with two individuals appearing on their behalves. The Marriage Certificate identifies NH as “A~.”

Discussion

A. Federal Law

1. Name change

Social Security regulations provide that a number holder may ask the agency to change or correct her records, including her name. See 20 C.F.R. §§ 401.65, 422.110 (2019).[2] A name change replaces a prior legal name [3] with a different legal name based on a “name change event.” POMS RM 10212.150.A. A name change event includes a U.S. ceremonial marriage. POMS RM 10212.010.

A number holder must present convincing documentary evidence to justify a change in her records. See 20 C.F.R. §§ 422.107, 422.110(a). To process a name change, the number holder must provide evidence of the name change event, a new name, and the number holder’s identity on the latest Numident record. See 20 C.F.R. § 422.107(a), (c); POMS RM 10210.015.A; POMS RM 10212.015.A; POMS RM 10212.150.A.

The agency shall accept all marriage documents issued within the 50 U.S. States as evidence of a name change based on a U.S. ceremonial marriage. POMS RM 10212.025. Marriage certificates and copies of marriage records are acceptable evidence of a name change. Id.

2. Survivor's and spousal benefits

A claimant may qualify for survivor’s benefits on an insured individual’s record if his or her marriage to the insured individual was valid under the laws of the state where the number holder was domiciled at the time of death. See Social Security Act (Act) § 216; 20 C.F.R. § 404.345; POMS RS 00207.001.A.1.

A claimant may be eligible for spousal benefits if, among other criteria, she is validly married to an insured individual under the laws of the state where the insured individual was domiciled at the time the claimant filed an application (or during the life of the application). See Act § 202; 20 C.F.R. § 404.345; POMS RS 00202.001.A.1.

B. State Law [4]

Marriage ceremonies in Montana are governed by Title 40, Chapter 1, Part 3 of Montana Code Annotated (MCA). MCA Section 40-1-301 governs solemnization (the marriage ceremony) and registration of marriages. Subsections 40-1-301(2) and (4) set forth the requirements for a marriage by proxy. Subsection (2) provides that if a party to a marriage is unable to be present at the solemnization, the party may authorize a third person in writing to act as a proxy. MCA§ 40-1-301(2). Subsection (4) requires that one party to the proxy marriage be either a member of the armed forces of the United States on federal active duty or a resident of Montana at the time of the marriage application and license. MCA§ 40-1-301(4). Subjection (4) also requires that one party or a legal representative appear before the clerk of the court and pay the marriage license fee. Id.

C. Analysis

1. NH’s marriage is a valid name change event.

We believe the dual proxy ceremonial marriage is valid under Montana law. The information provided by NH and Groom indicates that the requirements of Subsections (2) and (4) of MCA Section 40-1-301 have been met, and that a Montana court would treat the proxy marriage as valid.

NH and Groom each provided copies of affidavits notarized in January 2019 in support of the proxy marriage. In the affidavits, NH and Groom stated that they were unable to attend the solemnization due to the Groom being in active military service, they intended that the marriage be performed without personal appearance, and they consented to the marriage being performed by proxy. This evidence satisfies Subsection (2) of the relevant Montana code section. MCA § 40-1-301(2).

NH and Groom also stated in the affidavits that one party was either a member of the armed forces of the United States on federal active duty or a resident of Montana as required by Subsection (4).[5] MCA§ 40-1-301(4). The groom also provided a copy of an identification card indicating that he serves in the army. The marriage certificate indicates that two individuals appeared at the solemnization on behalf of the bride and groom, and this document and the marriage license provide evidence that a legal representative of the parties appeared before the clerk of the court and paid the marriage license fee as required by Subsection (4). Id. We also note that the bride and groom provided a certified copy of a marriage certificate, which is presumptive evidence of marriage under MCA Section 40-1-322. Given the evidence provided—affidavits from the bride and groom, attestation and proof of military service, and a certified copy of a marriage license and certificate—we believe that a Montana court would treat the proxy marriage as valid.

We also considered whether a double proxy marriage is permitted in Montana. Section 40-1-301 is silent on the issue, and there appears to be no case law addressing it. However, legal treatises indicate that double proxy marriages are permitted under Section 40-1-301. See Marie Connolly, Those Double Proxy Marriages: Do You Want to Get Involved, 31-OCT Mont. Law 29, Oct. 2005 (noting that Montana is the only state that allows for double proxy marriages but stating that Montana clerks of court have reported that other jurisdictions have not treated double proxy marriages as being valid outside of Montana when a party is not a U.S. citizen or there is no established relationship); see also Lucas I. Quass, Proxy Marriages and the Military Widow Penalty: Excluding Alien-Widows of Fallen Soldiers, 20 So. Cal. Rev. L. & Soc. Just. 501, 514 n. 106, 108, 109 (Summer 2011) (citing news articles regarding Montana’s double proxy weddings). In addition, a letter from a Montana law firm submitted by NH and Groom states that double-proxy marriages in Montana are accomplished according to Section 40-1-301(2) and (4).

Moreover, based on the rules of statutory construction, a Montana court could reasonably conclude that double proxy marriages are permitted under MCA Subsections 40-1-301(2) and (4). Subsection (2) permits “a party” to a marriage to authorize a proxy if the party is unable to be present, and subsection (4) requires “one party” to a proxy marriage to be on federal active duty or a Montana resident. Given the legislature’s use of the words “a party” in subsection 2 and “one party” in subsection 4, a reasonable interpretation that is consistent with the language of Section 40-1-301 as a whole, is that both parties may authorize a proxy if each are unable to be present, and if one party meets either the military service or the residency requirement. See Montana Power Co. v. Cremer, 596 P.2d 483, 485 (Mont. 1979) (listing the rules of statutory construction, in relevant part, as determining whether the interpretation is consistent with the statute as a whole and whether the interpretation reflects the intent of the legislature considering the plain language of the statute). Had the legislature intended to limit the authorization of a proxy to “one” absent party under Subsection 2, the legislature could have said so, but did not. Therefore, double proxy marriages, including this one, appear to be permitted under Montana law.

NH provided certified copies of a marriage license and marriage certificate from the State of Montana, which reflects her last name changed from T~ to R~. The agency shall accept such evidence as acceptable evidence of a name change. See POMS RM 10212.025. Therefore, NH provided sufficient evidence to change her last name.

2. The dual proxy nature of NH’s marriage is unlikely to affect eligibility for spousal or survivor’s benefits.

The validity of the marriage between NH and Groom for purposes of survivor’s benefits will depend on where the insured individual is domiciled at the time of his or her death. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345; POMS RS 00207.001.A.1. Similarly, the validity of the marriage for purposes of spousal benefits will depend on where the insured individual is domiciled at the time of the application for such benefits. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345; POMS RS 00202.001.A.1. Since it appears there has been no death or application for benefits, a determination of the validity of the marriage for purposes of survivor’s or spousal benefits would be speculative at this time.

However, we do not believe the marriage will affect potential eligibility for survivor’s or spousal benefits. “The law of the place where a marriage occurred ordinarily determines the validity of a marriage.” POMS GN 00305.005.B. As discussed above, NH’s marriage occurred in Montana and we believe it is valid under Montana law.

Otherwise, a marriage may be void if it violates a state’s law or public policy. Id. Examples of such marriages include those involving people under a certain age and polygamous marriages. Id. The issue of marriage by proxy concerns procedural requirements for marriage under the laws of Montana, and is not of the nature of underage or polygamous marriages. Therefore, we do not believe marriage by proxy would violate a state’s law or public policy now that the marriage has been solemnized by the State of Montana.

Conclusion

NH provided sufficient information to change her last name. We do not believe the marriage by proxy between NH and Groom will affect potential entitlement to survivor’s or spousal benefits, but a separate determination may be needed if or when an application for such benefits is filed.

 


Footnotes:

[1]

Both the NH and Groom had California driver's licenses at the time of marriage

[2]

All references to the Code of Federal Regulations are to the 2019 edition.

[3]

A person’s “legal name” is the individual’s first name and last name and is the name used to sign legal documents, deeds, or contracts. Program Operations Manual System (POMS) 10212.001.A.

[4]

OGC Region VIII prepared the portions of this opinion concerning Montana law.

[5]

NH and Groom have not claimed to be residents of Montana. NH provided a copy of a California driver’s license that was valid at the time of the marriage, and a Georgia driver’s license issued after that date, and Groom provided a copy of a California driver’s license.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505405029
PR 05405.029 - Montana - 01/15/2020
Batch run: 01/15/2020
Rev:01/15/2020