TN 45 (03-14)

GN 00305.005 Determining Marital Status

CITATIONS: Act-Section 216(h)(l), P.L. 104-199, Regulations No. 4-Sections 404.344, 404.723 - 404.728, 404.732

A. Introduction to determining marital status

In determining whether a claimant qualifies as a spouse under the Social Security Act, consider all of the following types of marriages:

Types of Marriages

References

  • Valid ceremonial

GN 00305.020 -

GN 00305.030

  • Common-law

GN 00305.060 -

GN 00305.065

  • Invalid marriage that permits a spouse to inherit under state intestate personal property, e.g. putative

GN 00305.085

See GN 00305.001B for state and intestate.

  • Custom - a marriage that state law will recognize if it meets all procedural requirements

GN 00305.090 -

GN 00305.095

  • Deemed

GN 00305.055

B. Procedure for determining marital status

1. Determining which state’s law applies

The law of the place where a marriage occurred ordinarily determines the validity of a marriage. If the marriage is valid in that jurisdiction, it is usually held valid in other places. However, even though the marriage was valid where it was celebrated, it may be void in the state of the worker's domicile if it violates the law or public policy of that state. See GN 00305.001B for definitions of state and domicile.

This generally applies when the Uniform Marriage Evasion Act is implicated, if the marriage is polygamous, or if same-sex marriage is not recognized. To obtain additional information on the Uniform Marriage Evasion Act, see GN 00305.155.

2. Polygamous marriage

Some states may consider a foreign polygamous marriage contracted in a jurisdiction that recognizes such marriages valid to the extent that the spouses share equally in the intestate personal property of the worker. Obtain a legal opinion following instructions in GN 01010.815 when the claim is based on a foreign polygamous marriage.

3. Marriage license

Most jurisdictions require that persons who intend to contract a ceremonial marriage obtain a license; however, the marriage may be valid under state law despite the fact that the parties to the marriage did not secure a license.

4. Same-sex marriage/union

For instructions about same-sex marriage policy, see GN 00210.000 et seq.

5. Transgender claims

Transgender claims are those in which information (e.g., from an amended birth certificate, the Numident, or information volunteered during the interview) suggests that a party in a marriage, whether the claimant or the number holder (NH), has changed his or her sex. A transgender individual is a person whose gender identity is different from his or her sex as assigned at birth and identified in an original birth certificate.

CAUTION: These instructions do not apply to individuals who identify as intersex. Intersex is a term used for people whose sexual or reproductive anatomy or chromosomal pattern does not seem to fit typical definitions of male or female, or who have some sexual characteristics (external genitalia, chromosomes, internal reproductive systems, etc.) that are typically associated with males and some sexual characteristic that are typically associated with females. If the NH or claimant self-identifies as an intersex person, obtain a legal opinion following instructions in GN 01010.815.

NOTE: Do not use sex field data on SSA records to determine whether a valid marital relationship exists if there is evidence of change in sex. Instead, request a public record of marriage per RS 00202.070. Be sure to resolve any other discrepancies using normal operating procedures.

IMPORTANT: If the Numident shows a different name than the one the claimant(s) alleges, verify the identity of the individual. Follow procedures in GN 00203.020, GN 00203.008, and RM 10212.001.

a. How to determine marital status for transgender claims

Step

Action

1

Does available information (e.g., from an amended birth certificate, the Numident, or information volunteered during the interview) suggest that a party in a marriage has changed his or her sex?

If yes, go to step 2.

If no, do not apply these instructions to determine the individual’s marital status. Do not develop further for possible change of sex.

2

Ask, “Did the change of sex occur before or after marriage?”

If the change of sex occurred before marriage, go to GN 0305.005B.5.b, below.

If the change of sex occurred after marriage, go to GN 00305B.5.c, below

b. How to determine marital status for transgender claims, when the change of sex occurred before the date of marriage

Step

Action

1

If the change of sex occurred before marriage, ask:

  • where the NH was domiciled at the time of death, or

  • where the NH is domiciled at the time of application, or while the claim is pending a final determination.

If the answer is one of the jurisdictions listed below:

  • American Samoa,

  • Florida,

  • Idaho,

  • Kansas,

  • Ohio,

  • Oklahoma,

  • Puerto Rico,

  • Tennessee,

  • Texas, or

  • U.S. Virgin Islands

Obtain a legal opinion on the marital status, as set out in GN 01010.815.

If not, go to step 2.

2

Was the marriage celebrated in a state listed in the “same-sex marriages permitted” column of the chart in GN 00210.100B.1?

If yes, go to step 3.

If no, assume that the marriage into which the individuals entered was an opposite-sex marriage under the laws of the state in which it was celebrated. Assume that the marriage remains valid for its duration, unless terminated by death, divorce, or annulment. Process the claim under existing instructions for opposite-sex marriages.

3

Ask the claimant, “We know that the state in which you were married permits same-sex marriage. Did you enter a same-sex or an opposite-sex marriage?”

Accept the claimant’s statement regarding whether the marriage was a same-sex or an opposite-sex marriage.

If the answer is “same-sex,” process the claim under the Windsor instructions found in GN 00210.000 ff.

If answer is “opposite-sex,” process the claim under existing instructions for opposite-sex marriages.

c. How to determine marital status for transgender claims, when the change of sex occurred after the date of marriage

Step

Action

1

Did the marriage celebration occur in a state listed in the “same-sex marriages permitted” column of the chart in GN 00210.100B.1?

If yes, go to step 2.

If no, assume that the marriage into which the individuals entered was a valid opposite-sex marriage under the laws of the state in which it was celebrated. Process the claim under existing instructions for opposite-sex marriages.

2

Ask the claimant, “We know that the state in which you were married permits same-sex marriage. Did you enter a same-sex or an opposite-sex marriage?”

Accept the claimant’s statement regarding whether the marriage was a same-sex or an opposite-sex marriage.

If the answer is “same-sex,” process the claim under the Windsor instructions found in GN 00210.000 ff.

If answer is “opposite-sex,” process the claim under existing instructions for opposite-sex marriages.

d. Examples:

John applies for spouse benefits based on a marriage celebrated in Georgia. He and the NH are living in Georgia at the time of the application. John alleges that his change of sex occurred before his marriage. Georgia is not on the list of states requiring a legal opinion concerning transgender status in GN 00305.005B.5.b (step 1). In addition, Georgia does not appear on the list of states permitting same-sex marriage in GN 00210.100B.1. Because Georgia does not permit same-sex marriages, assume that the marriage was an opposite-sex marriage and process according to existing instructions for the claim type.

Anne applies for widow’s benefits based on a marriage celebrated in Massachusetts. Anne alleges that the late number holder’s change of sex occurred before her marriage. The NH died while living in Connecticut. Connecticut is not on the list of states requiring a legal opinion concerning transgender status in GN 00305.005B.5.b (step 1). However, Massachusetts is listed in GN 00210.100B.1, as a state permitting same-sex marriage. The interviewer asks, “We know that the state in which you were married permits same-sex marriage. Did you enter a same-sex or an opposite-sex marriage?” Anne alleges that she entered a same-sex marriage. Process the claim using Windsor instructions in GN 00210.000.

Todd applies for spouse benefits based on a marriage celebrated in Maryland. Todd alleges that his change of sex occurred after his marriage. Because Maryland is a state listed in GN 00210.100B.1, permitting same-sex marriage, the interviewer asks, “We know that the state in which you were married permits same-sex marriage. Did you enter a same-sex or an opposite-sex marriage?” Todd alleges that his was an opposite-sex marriage. Process the claim using existing instructions for opposite-sex marriages.


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http://policy.ssa.gov/poms.nsf/lnx/0200305005
GN 00305.005 - Determining Marital Status - 03/26/2014
Batch run: 03/26/2014
Rev:03/26/2014