You asked whether, for purposes of establishing entitlement to widower’s benefits
and a lump-sum death payment, the claimant J~ (Claimant) was married to deceased wage
earner J2~ (the DWE).
Yes. Claimant is eligible to widower’s benefits and a lump-sum death payment based
on his marriage to the DWE.
SUMMARY OF EVIDENCE
Claimant and the DWE were married in Mexico City, Mexico on January XX, 2014. They
registered their civil marriage. The DWE died on January XX, 2017. His permanent domicile
at the time of his death was Arizona.
To be entitled to widower’s benefits under Title II of the Social Security Act (Act),
a claimant must establish that he is the widower of an individual who died fully insured.
See Social Security Act §§ 202(e), 216(c); 20 C.F.R. § 404.335. Under Section 216(h)
of the Act, the agency will find a claimant to be the insured’s widower if the courts
of the State in which the insured individual resided at the time of his death would
find that the claimant was validly married to the insured when the death occurred.
Social Security Act § 216(h)(1)(A)(i).
Upon the death of an insured individual, the agency may also make a lump-sum death
payment (LSDP) to the insured’s widower if he was living in the same household as
the insured at the time of death and applied for the LSDP within two years after the
insured’s death. Social Security Act § 202(i); 20 C.F.R. §§ 404.390, 404.391; Program
Operations Manual System (POMS) RS 00210.001.
With respect to the agency’s application of State marriage laws, we note that in Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015), the Supreme Court held State laws invalid to the
extent they exclude same-sex couples from marriage on the same terms and conditions
as opposite-sex couples. Pursuant to Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 94-98 (1993), SSA should give Obergefell full retroactive effect in all cases still open on direct review and as to all events,
regardless of whether such events predate or postdate Obergefell. As a result, SSA will consider State-law same-sex-marriage bans, whether based on
State constitutional or statutory provisions or case law, void and ineffective. SSA
will apply the relevant law to the facts as usual to evaluate marital status.
Arizona recognizes marriages validly conducted in another place unless strong public
policy exceptions require otherwise. Arizona Revised Statute (A.R.S.) § 25-112; Donlann v. MacGurn, 203 Ariz. 380, 383, 55 P.3d 74, 77 (Ct. App. 2002). Though Arizona statute states
there is a strong public policy prohibiting recognition of a same-sex marriage, A.R.S.
§ 25-101(c), that statute is unconstitutional. See, e.g., Majors v. Horne, 14 F. Supp. 3d 1313, 1315 (D. Ariz. 2014); Obergefell, 135 S.Ct. at 2604-05.
Mexico City, Mexico Law
Under Mexican law, parties must go through a civil ceremony to validate a marriage.
See POMS PR 05630.238 (Mexico is a civil law marriage country). The Civil Code of Mexico City provides that, generally, the civil status of individuals
may only be proved with certificates and records kept by the Mexico City Civil Registry. A marriage certificate issued by the Mexico City Civil Registry is prima facie evidence that the couple was married before a Civil Registry official. Mexico City, Mexico, began recognizing same-sex marriages effective March 4, 2010. As federal courts have recognized, the Supreme Court of Mexico ruled that same-sex
marriages performed in Mexico City must be recognized nationwide. Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1080 (9th Cir. 2015); Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1075 (9th Cir. 2017); Guzman-Hernandez v. U.S. Atty. Gen., 611 F. App'x 956, 960–61 (11th Cir. 2015).
Because the DWE and Claimant were married in Mexico City, Mexico, the question is
whether their marriage was valid under the laws of Mexico such that Arizona would
recognize it as valid.
DWE and Claimant were validly married in Mexico City. They registered their civil
marriage and presented a marriage certificate issued by the Mexico City Civil Registry
as proof of their marriage. Mexico City has recognized same-sex marriages since 2010.
Arizona would thus recognize their marriage as valid. See Obergefell, 135 S. Ct. 2584, 2604-05; see also
POMS PR 05825.004 (March 2015 OGC opinion explaining that Arizona would recognize valid same-sex marriage
For the purpose of establishing entitlement to widower’s benefits and the LSDP, Claimant
has established that he was married to the DWE.