TN 6 (06-16)

PR 05820.011 Florida

A. PR 16-031 Validity of Norwegian Same-sex Marriage for Entitlement to Lump-Sum Death Payment and Widower's Insurance Benefits – Florida

Date: November 19, 2015

1. Syllabus

The claimant and the number holder (NH) married in Norway in 2011. Norway has recognized same-sex marriages as of January 1, 2009. The couple was married until the NH’s death in September 2014 in the state of Florida. The NH’s death certificate listed his marital status as never married and identifies the claimant as the informant. However, the claimant provided a marriage certificate issued in Norway and other supporting information indicating the claimant and NH were in fact married. The claimant applied for the lump-sum death payment and widower’s benefits on the NH’s earnings record. In order to determine if the claimant and NH are validly married for benefit purposes, we look to Florida law.

Florida has a history of recognizing valid foreign marriages. The courts generally determine the validity of a marriage based on the laws of the place where the purported marriage occurred. This means, if the marriage is valid in that jurisdiction, it is usually held valid in other places. Based on the evidence and information provided, Florida presumes the claimant’s marriage to the NH is valid under Norwegian law. Therefore, the claimant is also validly married to the NH under Florida law for purposes of determining entitlement to benefits on the NH’s earnings record.

2. Opinion

QUESTION

You asked whether the number holder (NH) and Claimant, who entered into a same-sex marriage in Norway, were validly married under Florida law for purposes of determining Claimant's entitlement to Title II benefits as NH's widower.

OPINION

Claimant was validly married to NH under Florida law for purposes of determining Claimant's entitlement to Title II benefits as NH's widower.

BACKGROUND

According to the information provided, A~ (Claimant) married G~ (NH) in Norway on August XX, 2011. NH's death certificate indicates he was a resident of Florida when he died on September XX, 2014. NH's death certificate lists his marital status as never married and identifies Claimant as the informant. Claimant's Numident indicates he is male, and NH's death certificate and Numident indicates he was male. On November XX, 2014, Claimant applied for the lump-sum death payment and all other insurance benefits for which he was eligible under Title II of the Social Security Act (Act) on NH's earnings record.

DISCUSSION

A claimant may be eligible for the lump-sum death payment if the claimant is the widower of an individual who died fully or currently insured. See Act § 202(i); 20 C.F.R. §§ 404.390, 404.391 (2015).1 A claimant may be eligible for widower's insurance benefits if the claimant is the widower of an individual who died fully insured. See Act § 202(f)(1); 20 C.F.R. § 404.335(a). A claimant may qualify as the widower of an insured individual if the courts of the State in which the insured individual was domiciled at the time of death would find the claimant and insured individual were validly married when the insured individual died. See Act § 216(h)(1)(A)(i); 20 C.F.R. §§ 404.335(a)(1), 404.345; Program Operations Manual System (POMS) GN 00305.001(A)(2)(a); see also POMS GN 00210.006(B) (stating Regional Chief Counsel opinions regarding validity of foreign same-sex marriages look to laws of the State of the number holder's domicile and must address whether marriage would be recognized as valid by the courts of the State of the number holder's domicile). NH's death certificate indicates he was a resident of Florida when he died. Therefore, we look to Florida law to determine if Claimant and NH were validly married.

Florida generally approves of the act of marriage, regardless of where it occurs, and presumes a marriage is valid. See Johnson v. Lincoln Square Properties, Inc., 571 So. 2d 541, 542 (Fla. Dist. Ct. App. 1990); Guelman v. De Guelman, 453 So. 2d 1159, 1160 (Fla. Dist. Ct. App. 1984). In addition, "[i]t is presumed that an official performing a marriage service, whether in a foreign or domestic jurisdiction would not have performed the service if there was any known impediment to the marriage." Guelman, 453 So. 2d at 1160. Furthermore, "all presumptions necessary to make a marriage valid, including the capacity to contract, attach upon proof of a ceremonial marriage and cohabitation by the parties under the belief that they were lawfully married." Anderson v. Anderson, 577 So. 2d 658, 660 (Fla. Dist. Ct. App. 1991).

Florida courts generally determine the validity of a marriage based on the laws of the place where the purported marriage occurred. See Johnson, 571 So. 2d at 542; see also POMS GN 00305.005(B)(1) ("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."). "The law in Florida on this point is consistent with the general rule recognized in other jurisdictions that the validity of a marriage is to be determined by the law of the jurisdiction where the marriage was entered into." Anderson, 577 So. 2d at 660.

Florida previously denied recognition to same-sex marriages due to statutory and State Constitutional provisions, but began recognizing same-sex marriages on January 5, 2015. See POMS GN 00210.003(A); POMS PR 05825.011. Additionally, on June 26, 2015, the U.S. Supreme Court held that same-sex couples may exercise the fundamental right to marry under the United States Constitution. See Obergefell v. Hodges, 576 U.S. ---, 135 S. Ct. 2584, 2604-05 (2015). The Court held State laws invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Id. 135 S. Ct. at 2605. The Court also reasoned that having required all States to marry same-sex couples, "[i]t follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." Id. at 2607-08.

In this case, Claimant provided a marriage certificate issued in Norway indicating Claimant and NH married on August XX, 2011. As of January 1, 2009, Norway has recognized same-sex marriage as valid. See Letter from Elin Hofverberg, Foreign Law Research Consultant, Law Library of Cong. Global Legal Research Ctr., to Brian C. Huberty, Soc. Sec. Admin. (Feb. 4, 2015) (attached). Because the certificate and other information support the conclusion the marriage was valid in Norway, Florida would presume the marriage is valid under Norwegian law. See Anderson, 577 So. 2d at 660; Guelman, 453 So. 2d at 1160. Although Obergefell did not specifically address whether States must recognize same-sex marriages performed in other countries, Florida has a history of recognizing valid foreign marriages. See, e.g., Guelman, 453 So. 2d at 1160 (recognizing Bolivian marriage).

Obergefell also did not specifically address whether States are required to recognize same-sex marriages where one of the parties died before the Court rendered its decision. However, on September 10, 2015, the Social Security Administration (SSA) issued Emergency Message 15029, "Obergefell Supreme Court Decision–When to Recognize Same-sex Marriages in Title II Survivor and Lump-sum Death Payment (LSDP) Claims - One-Time-Only Instructions" (EM). The EM applies Obergefell and provides that, if a marriage was valid where celebrated in a State or U.S. territory, then SSA will recognize the marriage as valid as of the date of the marriage regardless of whether the number holder died domiciled in a State that recognized same-sex marriage when the number holder died. The EM directs this conclusion when determining whether a claimant is a same-sex spouse for Title II benefit purposes, that is, for determining whether under section 216(h)(1)(A)(i) of the Act and 20 C.F.R. § 404.345 the courts of the State where the number holder died (Florida in this case) would find the claimant and the number holder were married when the number holder died. Consequently, if the marriage between Claimant and NH had occurred in another State in the United States and the marriage was valid in that State, we would conclude that Florida courts would consider the marriage to be valid even if NH had died before Florida began recognizing same-sex marriages.

The EM does not specifically address marriages performed outside the United States and its territories. Nevertheless, Florida courts generally determine the validity of a marriage based on the laws of the place where the purported marriage occurred, regardless of whether the marriage was performed in another State or in another country. See, e.g., Guelman, 453 So. 2d at 1160 (sustaining trial court's interpretation of foreign law and presuming Bolivian marriage valid). Because, under the EM, we would conclude Florida courts would recognize a marriage like that between Claimant and NH if the marriage was validly performed in another State, we conclude a Florida court would find Claimant and NH are married in this case because Florida does not treat marriages performed in other States and marriages performed in other countries differently in ways that would result in a different outcome here.

However, we caution that neither the Supreme Court of Florida nor any of the Florida District Courts of Appeal have spoken on these issues and this area of law in Florida is in significant flux. Consequently, our conclusions may change as Florida law evolves on these issues.

CONCLUSION

Claimant was validly married to NH under Florida law for purposes of determining Claimant's entitlement to Title II benefits on NH's earnings record.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: Brian C. Huberty

Assistant Regional Counsel

B. PR 16-011 Validity of Same-sex Civil Partnership Performed in England for Entitlement to Husband’s Insurance Benefits – Florida

DATE: October 22, 2015

1. Syllabus

The number holder (NH) and the claimant entered into a same-sex civil partnership June 2008 in London, England. The NH currently receives retirement benefits and on June 2015, the claimant filed for spouse’s benefits on the NH’s earnings record while living in Florida. We look to Florida intestacy law to determine whether the English partnership between the claimant and the NH would permit the claimant to inherit a spouse’s share of the NH’s intestate property.

In Florida, the general rule is that the law of the jurisdiction in which a marriage was entered determines the validity of the marriage. In this case, the claimant and NH provided a certificate of civil partnership issued in England in June 2008. England began recognizing civil partnerships as of December 5, 2005. Entering into a civil partnership creates the same legal relationship between partners as a marriage between a husband and wife but with the different terminology of “civil partners.” Moreover, if a civil partner dies intestate, the same rules apply to the surviving civil partner as would apply in marriage to a surviving spouse. Therefore, we determined the claimant is validly married to the NH under Florida law for purposes of determining entitlement to spouse’s benefits on the NH’s earnings record.

2. Opinion

QUESTION

You asked whether the number holder (NH) and Claimant, who entered into a same-sex civil partnership in England, were validly married under Florida law for purposes of determining Claimant’s entitlement to Title II benefits as NH’s spouse.

OPINION

Claimant is validly married to NH under Florida law for determining Claimant’s entitlement to Title II benefits as NH’s spouse.

BACKGROUND

According to the information provided, B~ (Claimant) and A~ (NH) entered into a civil partnership on June XX, 2008, in London, England. Both Claimant and NH are male. NH currently receives old-age insurance benefits. On June XX, 2015, Claimant applied for Husband’s Insurance Benefits (HIB) on NH’s earnings record. Claimant and NH lived in Florida when Claimant filed his HIB application.

DISCUSSION

A claimant may be eligible for HIB if he is the husband of an individual entitled to old-age insurance benefits. See Social Security Act (Act) § 202(c)(1); 20 C.F.R. § 404.330(a) (2015).2 A claimant may qualify as the husband of a living insured individual if the claimant is validly married to the insured individual under the laws of the State where the insured individual is domiciled at the time of the claimant’s application. See Act § 216(f), (h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345. NH lived in Florida when Claimant applied for HIB on NH’s earnings record. Claimant and NH entered into a civil partnership, not a marriage, under English law. Therefore, we look to Florida intestacy law to determine whether the English civil partnership between Claimant and NH would permit Claimant to inherit a spouse’s share of NH’s intestate property.

Under Florida intestacy law, a surviving spouse is entitled to a share of the decedent’s estate. See Fla. Stat. Ann. § 732.102 (West 2015). Florida courts typically base the determination of whether an individual is a surviving spouse on the validity of the marriage. See, e.g., In re Estate of Perez, 470 So. 2d 48, 50 (Fla. Dist. Ct. App. 1985) (reviewing validity of marriage to determine lawful spouse in intestate matter); In re Kant’s Estate, 265 So. 2d 524, 526 (Fla. Dist. Ct. App. 1972) (same). We found no Florida case law specifically addressing whether a member of an English civil partnership can inherit as a spouse under Florida intestacy law.

Florida previously denied recognition to same-sex marriages due to statutory and State Constitutional provisions, but began recognizing same-sex marriages on January 5, 2015. See Program Operations Manual System (POMS) GN 00210.003(A); POMS PR 05825.011. Additionally, on June 26, 2015, the U.S. Supreme Court held that same-sex couples may exercise the fundamental right to marry under the United States Constitution. See Obergefell v. Hodges, 576 U.S. --, 135 S. Ct. 2584, 2604-05 (2015). The Court State invalid to the extent that they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Id. at 2605. The Court also reasoned that having required all States to allow same-sex couples to marry, “[i]t follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” Id. at 2607-08.

However, questions remain whether Florida would recognize an English civil partnership as a marriage. See POMS GN 00210.004(A). In Florida, the general rule is that the law of the jurisdiction in which a marriage was entered determines the validity of a marriage. Anderson v. Anderson, 577 So. 2d 658, 660 (Fla. Dist. Ct. App. 1991). For example, although Florida does not provide for common law marriages, it recognizes out-of-State common law marriages if such marriages are sanctioned in the State in which they were formed. See, e.g., Smith v. Anderson, 821 So. 2d 323, 325 (Fla. Dist. Ct. App. 2002) (citing Anderson, 577 So. 2d at 660).

Florida courts also have examined relationships from other jurisdictions that are not marriages to determine whether Florida, nevertheless, would recognize the relationship as a marriage. A Florida appellate court has held Florida would recognize such a relationship as a marriage if the relationship is a legal union between one man and one woman as husband and wife. See American Airlines, Inc. v. Mejia, 766 So. 2d 305, 307 (Fla. Ct. App. 2000).3 In American Airlines, the court evaluated whether a Colombian Unión Marital de Hecho (“Unión”) was a marriage for Florida purposes in a wrongful death suit. Id. at 308-09. The court’s analysis compared the rights and responsibilities in the institution of marriage with those of the Unión under Colombian law. Id. The court found that the Unión was not a marriage due to legal differences between the two types of relationship, such as the fact that a Unión terminates upon the marriage of one party to another person and the parties to the Unión have no rights of inheritance. Id.

In this case, Claimant and NH provided a certificate of civil partnership issued in England in June 2008.4 England began recognizing same-sex civil partnerships as of December 5, 2005, under the Civil Partnership Act 2004. See Letter from Clare Feikert-Ahalt, Senior Foreign Law Specialist, Law Library of Cong. Global Legal Research Ctr., to Karen Aviles, Office of the Gen. Counsel, Soc. Sec. Admin, 1, (Aug. 2014) (attached). Entering into a civil partnership creates the same legal relationship between partners as a marriage between a husband and wife, but with the different terminology of “civil partners.” See id. Moreover, under the Civil Partnership Act 2004, if a civil partner dies intestate, the same rules apply to the surviving civil partner as would apply in marriage to a surviving spouse. See id. at 3.5

Because English law mandates the same treatment for same-sex civil partners and members of civil marriages, the analysis of American Airlines applied to an English civil partnership suggests Florida could recognize the English civil partnership as a marriage. In American Airlines, the court made it clear that whether a Florida court will treat a relationship as a marriage depends on the law in the jurisdiction in which the relationship was entered. Under the analysis of American Airlines, that evaluation should focus on whether the non-marriage relationship results in treating the parties the same as if they were married. Here, based on guidance from the Law Library of Congress Global Legal Research Center, we conclude England’s laws require that parties to civil partnerships be treated the same as those to a marriage. This suggests that Florida courts could find an English civil partnership results in the partners being treated as having entered a legal union between spouses. Therefore, we conclude that Florida courts could find that parties to an English civil partnership are married. Although Obergefell did not specifically address whether States must recognize same-sex marriages performed in other countries, Florida has a history of recognizing valid foreign marriages. See, e.g., Guelman, 453 So. 2d at 1160 (recognizing Bolivian marriage). Thus, because (1) all legal rights for civil partners are the same as those for married spouses so Florida courts could find the relationship created in an English civil partnership is a marriage, (2) Florida now recognizes same-sex marriages from other States, and (3) Florida should recognize such marriages from foreign countries, we conclude Florida courts could find Claimant and NH are validly married. Despite the above analysis, we caution that neither the Supreme Court of Florida nor any of the Florida District Courts of Appeal have spoken on these issues and this area of law in Florida is in significant flux. Consequently, our conclusions may change as Florida law evolves on these issues

We recognize that in the case of a non-marital legal relationship, a claimant may meet the spousal relationship requirement if the claimant can inherit a spouse’s share of the insured’s personal property under the intestate succession laws of the State where the insured individual is living at the time of the claimant’s application. See Act. § 216(h)(1)(A)(ii); 20 C.F.R. §§ 404.330(a), 404.345; POMS GN 00210.004(A), (B)(2). This deemed marriage analysis does not further the decision in this case. In Florida, the right to inherit as a spouse through intestate succession depends on the individual’s relationship to the decedent and the law of the country where the relationship was formed controls the status of the marriage. See In re Estate of Salathe, 703 So. 2d 1167, 1169 (Fla. Dist. Ct. App. 1997). However, the intestate inheritance of property is still controlled by the law where the property is located. See id. Therefore, while English law may determine whether NH and Claimant are married, Florida law would still determine whether and how Claimant could inherit from NH in intestacy. As such, the evaluation still relies on whether Florida would consider Claimant and NH’s civil partnership a marriage and the deeming analysis provides no other avenue to decide this matter.

CONCLUSION

Claimant is validly married to NH under Florida law for purposes of determining Claimant’s entitlement to HIB on NH’s earnings record.

Mary Ann Sloan

Regional Chief Counsel

By: Christopher Yarbrough

Assistant Regional Counsel

C. PR-15-174 Validity of French Same-sex Marriage for Entitlement to Husband’s Insurance Benefits – Florida

July 30, 2015

1. Syllabus

The number holder (NH) and Claimant, who entered into a same-sex marriage in France, are validly married under Florida law for purposes of determining Claimant’s entitlement to Title II insurance benefits as NH’s spouse.

2. Opinion

QUESTION

You asked whether the number holder (NH) and Claimant, who entered into a same-sex marriage in France, are validly married under Florida law for purposes of determining Claimant’s entitlement to Title II insurance benefits as NH’s spouse.

OPINION

Claimant is validly married to NH under Florida law for purposes of determining Claimant’s entitlement to Title II insurance benefits as the NH’s spouse.

BACKGROUND

According to the information provided, M~ (Claimant) married C~ (NH), on August XX, 2013, in Aubais, France. Both Claimant and NH are male. NH currently receives old-age insurance benefits. On November XX, 2014, Claimant applied for husband’s insurance benefits (HIB) on NH’s earnings record. Claimant and NH lived in Florida when Claimant filed his HIB application.

DISCUSSION

A claimant may be eligible for HIB if he is the husband of an individual entitled to old-age insurance benefits. See Social Security Act (Act) § 202(c)(1); 20 C.F.R. § 404.330(a) (2015).6 A claimant may qualify as the husband of a living insured individual if the claimant is validly married to the insured individual under the laws of the State where the insured individual was domiciled at the time of the claimant’s application. See Act § 216(b), (f), (h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345; see also Program Operations Manual System (POMS) GN 00210.006(B) (stating SSA opinions regarding validity of foreign same-sex marriages look to laws of the State of NH’s domicile and must address whether marriage would be recognized as valid by the courts of the State of NH’s domicile). NH lived in Florida when Claimant applied for HIB on NH’s earnings record. Therefore, we look to Florida law to determine if Claimant and NH are validly married.

Florida generally approves of the act of marriage, regardless of where it occurs, and presumes a marriage is valid. See Johnson v. Lincoln Square Properties, Inc., 571 So. 2d 541, 542 (Fla. Dist. Ct. App. 1990); Guelman v. De Guelman, 453 So. 2d 1159, 1160 (Fla. Dist. Ct. App. 1984). In addition, “[i]t is presumed that an official performing a marriage service, whether in a foreign or domestic jurisdiction would not have performed the service if there was any known impediment to the marriage.” Guelman, 453 So. 2d at 1160. Furthermore, “all presumptions necessary to make a marriage valid, including the capacity to contract, attach upon proof of a ceremonial marriage and cohabitation by the parties under the belief that they were lawfully married.” Anderson v. Anderson, 577 So. 2d 658, 660 (Fla. Dist. Ct. App. 1991).

Florida courts generally determine the validity of a marriage based on the laws of the place where the purported marriage occurred. See Johnson, 571 So. 2d at 542; see also POMS GN 00305.005(B)(1) (“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.”). “The law in Florida on this point is consistent with the general rule recognized in other jurisdictions that the validity of a marriage is to be determined by the law of the jurisdiction where the marriage was entered into.” Anderson, 577 So. 2d at 660.

Florida previously denied recognition to same-sex marriages due to statutory and State Constitutional provisions, but began recognizing same-sex marriages on January 5, 2015. See POMS GN 00210.003(A); POMS PR 05825.011. Additionally, on June 26, 2015, the U.S. Supreme Court held that same-sex couples must be permitted to marry in all states. See Obergefell v. Hodges, 576 U.S. ---, 2015 WL 2473451, at *19 (2015). The Court also held that State laws prohibiting recognition of valid same-sex marriages were invalid. Id. The Court reasoned that, having required all States to allow same-sex couples to marry, “[i]t follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” Id. at *23.

In this case, Claimant and NH provided a marriage certificate issued in Aubais, France in August 2013. France legalized same-sex marriage as of May 17, 2013, and the French government issued administrative instructions that permitted local authorities to celebrate same-sex marriages starting on May 29, 2013. See Letter from Nicolas Boring, Foreign Law Specialist, Law Library of Cong. Global Legal Research Ctr. to Karen Aviles, Office of the Gen. Counsel, Soc. Sec. Admin. (Jan. 15, 2015) (attached). The marriage certificate on its face (per the translation) and the other information provided do not indicate the marriage certificate violates French law. See Anderson, 577 So. 2d at 660; Guelman, 453 So. 2d at 1160. Although Obergefell did not specifically address whether States must recognize same-sex marriages performed in other countries, Florida has a history of recognizing valid foreign marriages. See, e.g., Guelman, 453 So. 2d at 1160 (recognizing Bolivian marriage). Because the marriage between Claimant and NH is valid and Florida recognizes valid marriages from foreign jurisdictions and because Florida must now allow and recognize same-sex marriages, Florida would have no legal basis on which to refuse to recognize a valid French same-sex marriage. Therefore, we conclude Florida courts would recognize Claimant and NH’s French same-sex marriage as valid under current Florida law.

CONCLUSION

Claimant is validly married to NH under Florida law for purposes of determining Claimant’s entitlement to HIB on NH’s earnings record.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: Natalie Liem

D. PR 15-170 Validity of Belgian Same-sex Marriage for Entitlement to Wife's Insurance Benefits – Florida

July 28, 2015

1. Syllabus

The number holder (NH) and claimant married in Brussels, Belgium in 2009. Belgium legalized same-sex marriage effective June 1, 2003. The NH lived in Florida when the claimant applied for widow’s insurance benefits (WIB) on the NH’s earnings record. Therefore, we look to Florida law to determine if the claimant and the NH are validly married. Although the Obergefell decision did not specifically address whether States must recognize same-sex marriages performed in other countries, Florida has a history of recognizing valid foreign marriages and Florida courts generally determine the validity of a marriage based on the laws of the place where the marriage occurred. Since the Belgian marriage is valid, the claimant is validly married to the NH under Florida law for purposes of determining entitlement to Title II benefits on the NH’s earnings record.

2. Opinion

QUESTION

You asked whether the number holder (NH) and Claimant, who entered into a same-sex marriage in Belgium, were validly married under Florida law for purposes of determining Claimant's entitlement to Title II benefits as NH's spouse.

OPINION

Claimant is validly married to NH under Florida law for purposes of determining Claimant's entitlement to Title II benefits as NH's spouse.

BACKGROUND

According to the information provided, O~ (Claimant) married D~ (NH), on October XX, 2009, in Brussels, Belgium. Both Claimant and NH are female. NH currently receives old-age insurance benefits. On October XX, 2014, Claimant applied for wife's insurance benefits (WIB) on NH's earnings record. Claimant and NH lived in Florida when Claimant filed her WIB application.

DISCUSSION

A claimant may be eligible for WIB if she is the wife of an individual entitled to old-age insurance benefits. See Social Security Act (Act) § 202(b)(1); 20 C.F.R. § 404.330(a) (2015).7 A claimant may qualify as the wife of a living insured individual if the claimant is validly married to the insured individual under the laws of the State where the insured individual was domiciled at the time of the claimant's application. See Act § 216(b), (f), (h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345; see also Program Operations Manual System (POMS) GN 00210.006(B) (stating Regional Chief Counsel opinions regarding validity of foreign same-sex marriages look to laws of the State of the number holder's domicile and must address whether marriage would be recognized as valid by the courts of the State of the number holder's domicile). NH lived in Florida when Claimant applied for WIB on NH's earnings record. Therefore, we look to Florida law to determine if Claimant and NH are validly married.

Florida generally approves of the act of marriage, regardless of where it occurs, and presumes a marriage is valid. See Johnson v. Lincoln Square Properties, Inc., 571 So. 2d 541, 542 (Fla. Dist. Ct. App. 1990); Guelman v. De Guelman, 453 So. 2d 1159, 1160 (Fla. Dist. Ct. App. 1984). In addition, "[i]t is presumed that an official performing a marriage service, whether in a foreign or domestic jurisdiction would not have performed the service if there was any known impediment to the marriage." Guelman, 453 So. 2d at 1160. Furthermore, "all presumptions necessary to make a marriage valid, including the capacity to contract, attach upon proof of a ceremonial marriage and cohabitation by the parties under the belief that they were lawfully married." Anderson v. Anderson, 577 So. 2d 658, 660 (Fla. Dist. Ct. App. 1991).

Florida courts generally determine the validity of a marriage based on the laws of the place where the purported marriage occurred. See Johnson, 571 So. 2d at 542; see also POMS GN 00305.005(B)(1) ("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.") "The law in Florida on this point is consistent with the general rule recognized in other jurisdictions that the validity of a marriage is to be determined by the law of the jurisdiction where the marriage was entered into." Anderson, 577 So. 2d at 660.

Florida previously denied recognition to same-sex marriages due to statutory and State Constitutional provisions, but began recognizing same-sex marriages on January 5, 2015. See POMS GN 00210.003(A); POMS PR 05825.011. Additionally, on June 26, 2015, the U.S. Supreme Court held that same-sex couples may exercise the fundamental right to marry under the United States Constitution. See Obergefell v. Hodges, 576 U.S. ---, 2015 WL 2473451, at *19 (2015). The Court held State laws invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Id. The Court also reasoned that having required all States to marry same-sex couples, "[i]t follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." Id. at *23.

In this case, Claimant and NH provided a copy of a marriage certificate issued in Brussels, Belgium indicating Claimant and NH married on October XX, 2009. Belgium legalized same-sex marriage effective June 1, 2003. See Letter from Nicolas Boring, Foreign Law Specialist, Law Library of Cong. Global Legal Research Ctr., to Brian C. Huberty, Soc. Sec. Admin. (May 20, 2015) (attached). The marriage certificate on its face (per the translation) and the other information provided indicate the marriage certificate was issued in accordance with Belgian law. See Anderson, 577 So. 2d at 660; Guelman, 453 So. 2d at 1160. Although Obergefell did not specifically address whether States must recognize same-sex marriages performed in other countries, Florida has a history of recognizing valid foreign marriages. See, e.g., Guelman, 453 So. 2d at 1160 (recognizing Bolivian marriage). Thus, because the marriage between Claimant and NH is valid and Florida recognizes valid marriages from foreign jurisdictions, Claimant and NH are validly married under current Florida law.

CONCLUSION

Claimant is validly married to NH under Florida law for purposes of determining Claimant's entitlement to Title II benefits on NH's earnings record.

Mary Ann Sloan

Regional Chief Counsel

By: Brian C. Huberty

Assistant Regional Counsel


Footnotes:

[1]

. *All references to the Code of Federal Regulations are to the 2015 edition.

[2]

. . . All references to the Code of Federal Regulations are to the 2015 version.

[3]

. . . The language limiting marriage to one man and one woman referenced by the court relied on Fla. Stat. Ann. § 741.212(3). See American Airlines, 766 So. 2d at 307. As discussed in POMS PR 05825.011, Florida courts have ceased to enforce such language as of January 5, 2015 and the Obergefell decision precludes its enforcement as well. See Obergefell, 576 U.S. at --, 2015 WL 2473451, at *19, 23.

[4]

. . . The certificate of civil partnership appears valid on its face and an SSA employee signed a stamp on the photocopy p