TN 2 (12-14)

PR 05820.035 New York

A. PR 15-028 T~ – Entitlement to Auxiliary Spouse Benefits on the Account of Number Holder E~ – Validity under New York State Law of Same-Sex Marriage Performed in a Foreign Jurisdiction

DATE: November 19, 2014

1. SYLLABUS

New York State recognizes same-sex marriages validly entered into in foreign jurisdictions. South Africa has statutorily recognized same-sex marriages since November 30, 2006. The claimant and the NH were lawfully married under South African law in Cape Town, South Africa, in August 2007. Therefore, under the specific facts of this claim, the South African marriage would be recognized by the state of New York. The claimant’s marriage to the number holder is valid under New York law, and the claimant is entitled to benefits on the NH’s account, assuming that the claimant has satisfied other statutory and regulatory requirements for such benefits.

2. OPINION

QUESTION PRESENTED

Would New York State recognize the same-sex South African marriage of T~ (claimant) and E~, the number holder (NH), and would the claimant be entitled to auxiliary spouse benefits on the NH’s record?

OPINION

New York State, the NH’s current domicile, recognizes same-sex marriages validly entered into in foreign jurisdictions. South Africa has statutorily recognized same-sex marriages since November 30, 2006. The claimant and the NH were lawfully married under South African law in Cape Town, South Africa, on August XX, 2007. Therefore, under the specific facts of this claim, the South African marriage would be recognized by New York. Accordingly, under the Social Security Act (Act) the claimant is the NH’s spouse and thus entitled to auxiliary spouse benefits on the record of the NH, assuming that the claimant has satisfied other statutory and regulatory requirements for such benefits.

BACKGROUND

The claimant and the NH were married in Cape Town, South Africa. The Marriage Registration Extract (extract), dated September 11, 2007, and stamped “Unabridged Civil Union,” identifies the couple’s “Civil Union Type” as “Marriage.” The extract lists August XX, 2007 as the “Marriage Date” and the date the “[m]arriage was solemnized.”

The NH has been receiving Social Security Retirement benefits since October 2012. The claimant filed for auxiliary spousal benefits on the record of NH on December XX, 2013. The NH lived in New York at the time the application was filed. He has not since changed his domicile.

ANALYSIS

  1. Social Security Act and Regulations

    An insured wage earner’s spouse is eligible to receive old-age benefits as an auxiliary beneficiary if, among other requirements and as relevant here, the spousal relationship has lasted at least one year. See 42 U.S.C. §§ 402(b) and (c); 416(b), 416(h)(1)(A); 20 C.F.R. § 404.330(a). An individual is the spouse of the insured if the courts of the state in which the insured is domiciled would find that the applicant and the insured were validly married at the time the application was filed. 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345. The insured’s legal domicile is the state where the insured had a permanent home at the time of the application for spouse’s benefits. See 20 C.F.R. §§ 404.303, 404.345. Here, New York was the NH’s domicile at the time of the application and the NH continues to reside at the New York address listed in the application. Therefore, we look to New York law to determine if the claimant and the NH are validly married. Our specific inquiry focuses on whether the South African same-sex marriage is valid under New York law.

  2. New York State Law Regarding Same-Sex Marriage

    New York State long defined marriage as the voluntary union of one man and one woman as husband and wife. See Hernandez v. Robles, 855 N.E.2d 1, 6, 9-12 (N.Y. 2006) (holding constitutional “New York’s statutory law [that] clearly limits marriage to opposite-sex couples”). Same-sex marriage has only been legal in New York State since the Marriage Equality Act took effect on July 24, 2011, N.Y. Dom. Rel. Law § 10-a (McKinney 2013).

    However, New York law recognized same-sex marriages lawfully solemnized outside of the state, including in foreign countries, prior to the enactment of the Marriage Equality Act. On February 1, 2008, a New York appellate court held that New York would recognize same-sex marriages validly entered into in other jurisdictions, including the July 2004 Ontario, Canada same-sex marriage at issue before the court. Martinez v. County of Monroe, 850 N.Y.S.2d 740, 742 (4th Dept. 2008), leave to appeal denied, 859 N.Y.S. 2d 617, 889 N.E.2d 496 (2008).1 ). amicus brief in the District Court for the Southern District of New York, reinforcing its position that, “New York has long recognized as valid same-sex marriages that were solemnized under the laws of other States or nations….” Brief for the State of New York as Amicus Curiae Supporting Plaintiff, Windsor v. U.S., 797 F. Supp. 2d 320 (2011), 2011 WL 3098311. See also, U.S. v. Windsor, ___ U.S. ___, 133 S.Ct. 2675, 2683 (2013) (“New York deems [Windsor’s] Ontario marriage to be a valid one.”).

    The decision in Martinez, considered together with the 2011 amicus brief filed by the State of New York support the conclusion that, since at least February 1, 2008, New York has recognized same-sex marriages validly entered into in other jurisdictions. 2 Thus, we must next determine if the South African marriage was validly entered into.

  3. South African Law Regarding Same-Sex Marriage

    The Civil Union Act, which went into effect on November 30, 2006, legalized same-sex marriages in South Africa. Civil Union Act 17 of 2006, Government Gazette [GG] No. 29441 (Nov. 17, 2006), (available at http://www.gov.za/documents/download.php?f=67843). In December 2005, the South Africa Constitutional Court held that the country’s marriage laws violated its constitution by failing to afford same-sex couples the same rights accorded to opposite-sex couples. Minister of Home Affairs and Another v. Fourie and Another 2006 (3) BCLR 355, 398–399 (CC), (http://www.saflii.org/za/cases/ZACC/2005/19.htmlavailable at ). The Constitutional Court provided the South Africa Parliament one year to rectify the statutory deficiencies, resulting in the enactment of the Civil Union Act. Id.

    The Civil Union Act, the common law, the Marriage Act 25 of 1961, and the Recognition of Customary Marriages Act 120 of 1998 govern marriages under South African law. Jacqueline H & Anneliese R, Family and Succession Law in South Africa, 81 (2012). The Civil Union Act permits same-sex and opposite-sex couples to enter into a civil union. The civil union can be registered as either a marriage or a civil partnership according to the couple’s preference (Civil Union Act 17 of 2006 §§ 1, 2, 11); the officer presiding over the civil union must ask the couple their choice and record the selection on the marriage certificate. Id. §§ 11 &12; Civil Union Regulations, 2006, § 8, Government Notice No. 29439 (Nov. 29, 2006), (available at o.za/assets/articles/attachments/ 03721_regulation1206.pdfhttp://us-cdn.creamermedia.c.) A civil union, whether registered as a marriage or as a civil partnership, has the same legal ramifications, including with respect to intestate succession, as the other forms of marriage in South Africa – civil marriage occurring under common law or the Marriage Act, and customary marriage occurring under common law or the Customary Marriages Act. 3

CONCLUSION

The claimant’s marriage to the number holder is valid under New York law, and the claimant is entitled to benefits on the NH’s account, assuming that the claimant has satisfied other statutory and regulatory requirements for such benefits.

B. PR 14-144 Validity under New York State Law of G~’s Same-Sex Marriage Performed in the Netherlands and his Entitlement to a Lump-Sum Death Benefits on the Record of Number Holder S~.

DATE: August 6, 2014

1. SYLLABUS

New York State recognizes same-sex marriages validly entered into in foreign jurisdictions. The Netherlands has statutorily recognized same-sex marriages since April 1, 2001.

2. OPINION

QUESTION PRESENTED

Is G~ (Claimant), a widower, entitled to a lump-sum death benefit based upon his marriage to S~, the number holder (NH), where the marriage was performed in the Netherlands and the NH resided in New York State when he died?

OPINION

New York State, the domicile of the NH at the time of his death, recognizes same-sex marriages validly entered into in foreign jurisdictions. The Netherlands has statutorily recognized same-sex marriages since April 1, 2001. If the agency determines that the evidence submitted by Claimant demonstrates that Claimant and the NH validly entered into their marriage in the Netherlands on April XX, 2010, New York State would recognize the marriage. The marriage lasted longer than nine months immediately preceding the NH’s death and Claimant lived with the NH when he died. Accordingly, assuming there is sufficient proof of Claimant and the NH’s Netherlands marriage, Claimant would be a widower and would be entitled to a lump-sum death payment on the NH’s record.

BACKGROUND

According to translations of the submitted marriage document, 4 Claimant and the NH were married in Amsterdam, the Netherlands, on April XX, 2010. The marriage document was executed by the Mayor of Amsterdam, issued by the Office of Civil Registry and Office of the Mayor, and bears the signature of the registrar and what appears to be either the seal or stamp of the Civil Registry. The document lists the United States as the birthplace of both Claimant and the NH.

The NH filed for Social Security Disability benefits on April XX, 2013, listing a residence in New York State. The NH died on June XX, 2013, in Lafayette, New York. Claimant was living with the NH at the time of the NH’s death.

LEGAL FRAMEWORK

A. Social Security Act and Regulations

The widower of an individual who was fully or currently insured upon his or her death, is entitled to a lump sum payment of the smaller of $255 or three times the individual’s primary insurance amount. 42 U.S.C. § 402(i); 20 C.F.R. § 404.390. A widower is the surviving husband of an individual if he was married to the individual for not less than nine months immediately prior to the day on which the individual died. 42 U.S.C. § 416(g)(1). An applicant for a lump sum payment is a widower of an individual who was fully or currently insured upon his or her death, if the courts of the state in which the insured individual was domiciled at the time of death would find that the applicant and insured individual were validly married when the insured died. 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. To qualify for the lump sum payment, the widower must have been living in the same household with the deceased number holder at the time of the number holder’s death. 42 U.S.C. § 402(i); 20 C.F.R. §§ 404.347, 404.390.

B. New York State Law Regarding Same-Sex Marriage

New York State long defined marriage as the voluntary union of one man and one woman as husband and wife. See Hernandez v. Robles, 855 N.E.2d 1, 6, 9-12 (N.Y. 2006) (holding constitutional “New York’s statutory law [that] clearly limits marriage to opposite-sex couples”). Same-sex marriage has only been legal in New York State since the Marriage Equality Act took effect on July 24, 2011, N.Y. Dom. Rel. Law § 10-a (McKinney 2013).

However, New York law recognized same-sex marriages lawfully solemnized outside of the state, including in foreign countries, before the enactment of the Marriage Equality Act. On February 1, 2008, a New York appellate court held that New York would recognize same-sex marriages validly entered into in other jurisdictions, including the July 2004 Ontario, Canada same-sex marriage at issue before the court. Martinez v. County of Monroe, 850 N.Y.S.2d 740, 742 (4th Dept. 2008), leave to appeal denied, 859 N.Y.S. 2d 617, 889 N.E.2d 496 (2008). 5 In 2011, the State of New York, through Attorney General Eric T. S, filed an amicus brief in the District Court for the Southern District of New York, reinforcing its position that, “New York has long recognized as valid same-sex marriages that were solemnized under the laws of other States or nations.” Defendant United States’ Memorandum of Law in Response to Plaintiff’s Motion for Summary Judgment and Intervenor’s Motion to Dismiss, Windsor v. U.S., No. 10-CV-8435, 2011 WL 3754396 (S.D.N.Y. Aug. 19, 2011) (citing Brief for the State of New York as Amicus Curiae in Support of the Plaintiff, ECF 40-1 at 1). In Windsor’s challenge to the constitutionality of the Defense of Marriage Act, the Supreme Court noted, “New York deems [Windsor’s] Ontario marriage to be a valid one.” U.S. v. Windsor, -- U.S. --, 133 S.Ct. 2675, 2683 (2013).

The decision in M considered together with the 2011 amicus brief filed by the State of New York and the Supreme Court’s decision in Windsor, all support the conclusion that New York has recognized same-sex marriages validly entered into in other jurisdictions since at least February 1, 2008.

C. Dutch Law Regarding Same-Sex Marriage

Same-sex marriages have been legal in the Netherlands since the Dutch parliament, on December 21, 2000, amended Book I, Title 5, Article 30 of the country’s Civil Code, effective April 1, 2001. See Act of 21 Dec. 2000 on the Opening of Marriage, Staatsblad 2001, Nr. 9 (amending Burgerlijk Wetboek[Civil Code], Boek 1, Art. 30:1). 6 Pursuant to Article 30 of the Civil Code, a marriage may be entered into by two persons of either a different sex or of the same sex. Burgerlijk Wetboek, Boek 1, Personen- en familierecht [Civil Code Book 1, Family Law and the Law of Persons] (cited hereinafter as Civil Code), available on the official Dutch government website at http://wetten.overheid.nl/BWBR0002656/geldigheidsdatum_07-04-2014 (last visited on June 18, 2014). 7

ANALYSIS

When the NH died on June 16, 2013, he was domiciled in New York State. He had been married to Claimant since April 21, 2010. There is no evidence to indicate that the marriage was dissolved. Therefore, Claimant was married to the NH for more than nine months immediately before the NH’s death. Claimant also was living with the NH when he died. Accordingly, Claimant is a widower pursuant to 42 U.S.C. § 416(g)(1), provided that New York courts would find that he and the NH were validly married at the time of the NH’s death.

A. New York Would Recognize Claimant and NH’s Dutch Marriage if the Submitted Marriage Document is Acceptable Proof of their Marriage

New York law recognizes that “same-sex couples may legally marry in … the Netherlands.” Godfrey v. Spano, 892 N.Y.S. 2d 272, 275 n.1 (N.Y. 2009); In re Adoption of Sebastion, 879 N.Y.S. 2d 677, 682 (N.Y. Sur. 2009)). Thus, Claimant and the NH’s marriage would be recognized by New York courts if it was validly entered into in the Netherlands.

Same-sex marriage was legalized in the Netherlands on April 1, 2001. See Act of 21 Dec. 2000 on the Opening of Marriage. The submitted marriage document indicates that Claimant and the NH were married in Amsterdam, the Netherlands, on April 21, 2010. If this document is acceptable proof of their marriage, Claimant and the NH were validly married under Dutch law and their marriage would therefore be recognized by New York courts.

B. The Marriage Document Submitted with this Request Does Not Definitively Establish Claimant’s Marriage to the NH

The preferred proof of a ceremonial marriage, such as the one between Claimant and the NH, is “[a] copy of (or statement as to) a public record of marriage, certified by the custodian of record.” POMS GN 00305.020(A)(1). Acceptable records for proving the marriage (or birth, death, or other relevant information) are: (1) the original record; (2) an extract record, where the record custodian or SSA certifier takes information from the original record and certifies it for accuracy; (3) a certified photocopy to which the custodian of record affixes a signature, stamp or seal with a statement attesting to the accuracy of the photocopy; and/or (4) a true and exact copy prepared by an SSA certifier. POMS GN 00301.030(A). SSA will accept a photocopy of the original record or an extract only if the record custodian signs or stamps a statement executed when the document is made or affixes the seal of the record custodian’s office to the document. POMS GN 00301.080. If a claimant submits a document certified by the custodian of record, SSA assumes it is valid if not otherwise questionable. POMS GN 00301.045(B)(1)(a).

The Agency must determine whether the document submitted by Claimant should be accepted as proof of his marriage to the NH. As noted by the various translations, the document is either a marriage certificate or an extract. The document bears a circular seal or stamp translated as “Civil Registry Amsterdam,” was signed by the Registrar, and was issued by the Office of Civil Registry and Office of the Mayor of Amsterdam Municipality. POMS GN 00312.280 notes that a claimant seeking to obtain a certified copy of a marriage certificate from the Netherlands for purposes of proving his or her marriage should contact the Civil Registrar’s Office of the Burgomaster of the community in which the marriage occurred. See also POMS GN 00312.001(A) (for general advice to claimants on obtaining certified foreign records). For marriages performed in Amsterdam, POMS GN 00312.280 directs claimants to the Civil Registrar’s Office of Amsterdam, the very office that signed and stamped or affixed the seal to the document submitted by Claimant. Thus, it is likely that the document is certified by the custodian of record and may be preferred proof of the Claimant’s ceremonial marriage.

A definitive conclusion cannot be reached at this time because, from the copy of the document submitted to OGC, it is not possible to determine whether the circular mark is a seal or a stamp. If the circular mark is a seal, nothing further is required under POMS GN 00301.080 for the document’s accuracy and authenticity to be considered certified by the record custodian; the document would therefore be preferred proof of the Claimant and NH’s marriage under POMS GN 00305.020(A)(1). On the other hand, if the circular mark is a stamp, POMS GN 00301.080 requires a statement to be executed at the time the photocopy is made for the document’s accuracy and authenticity to be considered certified. Here, the stamp does not appear to include a statement executed when the photocopy was produced. The photocopy may be a souvenir certificate, a possibility raised by the Library of Congress’s memorandum to OGC, which is not preferred proof of marriage. POMS GN 00305.020(A). A souvenir certificate can, however, serve as secondary proof of the marriage, which would still prove the marriage as long as the other procedures in POMS GN 00305.025(B)(1) are followed. 8

CONCLUSION

If the Agency determines that the evidence submitted constitutes sufficient proof that the Claimant and NH married in the Netherlands on April 21, 2010, New York courts would recognize their marriage as of that date. It appears that they remained married until the NH died on June 16, 2013, meaning that they were still validly married in New York at the time of the NH’s death. Assuming there is sufficient proof of his Netherlands marriage, Claimant would therefore be a widower and would be entitled to a lump-sum death payment on the record of the NH.


Footnotes:

[1]

Although not a holding of New York State’s top court, Martinez applies state-wide. See Mountain View Coach Lines, Inc. v. Storms, 476 N.Y.S.2d 918, 919-20 (1984) (noting that “[t]he Appellate Division is a single statewide court divided into departments for administrative convenience and, therefore, the doctrine of stare decisis requires trial courts in [one department of the Appellate Division] to follow precedents set by the Appellate Division of another department until the Court of Appeals or the Appellate Division of another department pronounces a contrary rule.”).

[2]

In Martinez, the court noted that “[f]or well over a century, New York has recognized marriages solemnized outside of New York unless they fall into two categories of exception:” (1) marriages prohibited by “positive law” enacted by the legislature and (2) marriages prohibited by “natural law”, such as polygamy or incest. M, 850 N.Y.S. 2d at 742 (citations and internal quotations omitted). The court concluded that same-sex marriage did not “fall within either of the two exceptions to the marriage-recognition rule.” Id. The positive law exception did not apply because the New York legislature had not enacted legislation prohibiting recognition of foreign same-sex marriages; the natural law exception did not apply because the marriage was not polygamous, incestuous, or “‘offensive to the public sense of morality to a degree regarded generally with abhorrence.’” Id. at 743 (citation omitted).

[3]

A customary marriage is one that is in accordance with the customs of the indigenous peoples of South Africa. Recognition of Customary Marriages Act 120 of 1998 § 1 (available at http://www.justice.gov.za/legislation/acts/1998-120.pdf).

Civil Union Act 17 of 2006 § 13; Jacqueline Heaton & Anneliese Roos, Family and Succession Law in South Africa, 81, 82, 201 (3d ed. 2010).

Here, the claimant and the NH entered into a valid same-sex marriage in South Africa on August 13, 2007. As evidenced by the “Civil Union” stamp at the top of the submitted extract and the description of “Civil Union Type” as “Marriage,” the claimant and the NH married under the Civil Union Act. Under the laws of New York State, where claimant is domiciled, this marriage would be recognized as valid since at least February 1, 2008. See Godfrey v. Spano, 892 N.Y.S. 2d 272, 275 n.1 (N.Y. 2009) (recognizing that “same-sex couples may legally marry in … South Africa”). Accordingly, the claimant’s marriage to the NH is valid under the Act for purposes of determining the claimant’s entitlement to auxiliary spouse’s benefits on the NH’s record.

[4]

Separate translations were provided by International Translation Service of Syracuse and, upon OGC’s request, the District Manager of the Canarsie Field Office, an agency translator fluent in Dutch. Additionally, a research memorandum prepared by the Library of Congress at the request of OGC translated parts of the document in order to complete the memo. There were some notable differences in the translations. International Translation Service referred to the document as a marriage certificate extract, the District Manager described it as marriage certificate, and the Library of Congress concluded that it was probably not a marriage certificate but might be an extract, though the researcher observed that those words do not appear on the document in Dutch. International Translation Service and the District Manager noted that the document was issued by the Office of the Civil Registry and Office of the Mayor of Amsterdam; while the Library of Congress memo did not specifically note the issuing agency, it did point out that the document bears a seal stating Civil Registry of Amsterdam and is signed by the Registrar.

[5]

Although not a holding of New York State’s top court, M applies state-wide. See Mountain View Coach Lines, Inc. v. Storms, 476 N.Y.S.2d 918, 919-20 (1984) (“[t]he Appellate Division is a single statewide court divided into departments for administrative convenience.” Stare decisis requires trial courts in one department of the Appellate Division to follow precedents set by the Appellate Division of another department until the Court of Appeals or the Appellate Division of another department pronounces a contrary rule).

[6]

An unofficial English translation of the legislation is available at http://media.leidenuniv.nl/legacy/Translation%20of%20Dutch%20law%20on%20same-sex%20marriage.pdf (last checked June 18, 2014).

[7]

See The Civil Code of the Netherlands [Civil Code] 30 (Hans Warendorf, et al. trans., Alphen aan den Rijn, Kluwer Law International 2009) for an unofficial English translation of the entire Civil Code.

[8]

Those procedures involve the Agency providing as much information as possible concerning the events surrounding the marriage ceremony and obtaining an SSA-795 from the claimant containing descriptions of: (1) the place where the ceremony was performed; (2) the person who performed the ceremony; (3) how the parties went to the place of the marriage; (4) the weather; (5) witnesses; and (6) any other details that can be remembered. POMS GN 00305.025(B)(1). ---------------


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PR 05820.035 - New York - 12/15/2015
Batch run: 12/15/2015
Rev:12/15/2015