TN 29 (05-01)
GN 00305.005 Determining Marital Status
Regulations No. 4-Sections 404.344,
404.723, 404.725, 404.726, 404.727, 404.728,
A. Introduction — determining marital status
In determining whether or not a claimant qualifies as a spouse under the SS Act, consider all of the following types of marriages:
B. Policy — determining marital status
1. Which state's law applies
The validity of a marriage is ordinarily determined by the law of the place where it occurred; if valid in that jurisdiction, it is usually held valid in other places. However, even though the marriage was valid where it was contracted, it may be void in the State of the worker's domicile if it violates the law or public policy of the latter State. This view is most commonly held when the Uniform Marriage Evasion Act (GN 00305.155) is applicable or the marriage is polygamous.
2. Polygamous marriage
A foreign polygamous marriage contracted in a jurisdiction that recognizes such marriages may be considered valid in some States to the extent that the spouses share equally in the intestate personal property of the worker.
3. Marriage license
Most jurisdictions require that a license be obtained by persons intending to contract a ceremonial marriage. However, the marriage may be valid under State law despite the fact that no license was secured.
4. Transgender claims
Transgender claims are those in which information (e.g., from an amended birth certificate, the Numident, volunteered information) suggests or supports that a party to a purported marriage has attempted to change his or her gender since birth. The gender change may impact the status of the claimant as the wife, husband, or widow(er) of the NH. Moreover, the status of a claimant as the child of the NH may depend upon whether the child's parents (the NH and another person) were married. The relationship of the claimant to the NH is largely dependent on the validity of the marriage in question or the right of the claimant to inherit by intestate succession from the NH under State Law. Some States may recognize gender changes, therefore, may recognize a marriage (or inheritance rights) where a transgender individual is involved, provided the new gender is opposite the gender of the other party to the alleged marriage.
a. Gender change prior to marriage
Request an RCC opinion to determine the validity of any marriage where information suggests or supports that prior to the marriage, either party changed his/her gender from the gender at birth. Also request an RCC opinion for an earlier marriage of the claimant or NH to other people where either party to the earlier marriage changed his/her gender prior to the marriage and the marriage was not terminated by divorce or annulment. Send the claim to the RCC responsible for the laws of the appropriate domiciliary State and request an opinion about whether the marriage in question is valid or whether the claimant may inherit from the NH by intestate succession under applicable state law. This applies regardless of whether the attempted gender change consisted of psychological and physiological treatment, or only psychological or partial physiological treatment. The laws of the States that recognize gender changes differ concerning the criteria which must be met to establish a gender change.
b. Gender change after marriage-no divorce or annulment
A change in gender from the gender at birth of either marriage partner after marriage may or may not invalidate a marriage that was valid at its inception. In States where a gender change is not recognized, such a marriage likely would continue to be valid. However, it is unclear in States which recognize a gender change whether an existing valid marriage is considered a same sex-marriage and therefore, invalid after one party changes gender. Moreover, the law is not clear whether the parties may inherit from each other as spouses under intestate succession. Therefore, send to the RCC any claim involving gender change that occurred after marriage to determine the effect of the change under applicable State law. Forward the request to the RCC responsible for the laws of the appropriate State.
In all transgender claims, obtain all available evidence relating to the marriage as well as the gender change. In particular, gather evidence as to whether an amended birth certificate was issued as well as information as to where, i.e., facility/State, the gender change was performed, before submitting the claim to the RCC. See GN 01010.800.
CAUTION: If the Numident shows a gender change and the RCC determines that a gender change did not occur, do NOT change the Numident.
5. Same-sex marriage/union
For instructions about same-sex marriage policy, see GN 00210.100.
C. Procedure - legal opinions — determining marital status
For any case in which an RCC opinion is needed, check existing legal opinions in POMS Part 15 (PR) on PolicyNet.
If . . .
Then . . .
an applicable legal opinion exists
Process the case under normal procedures.
a new legal opinion is needed
Follow the procedures in GN 01010.800 for possible submittal to the RCC.