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. H~, Soc. Sec. Admin. (Feb. 4, 2015) (attached). Because the certificate
and other information support the conclusion the marriage was valid in N~, 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