TN 5 (07-16)

PR 05840.011 Florida

A. PR 16-040 Validity of Vermont Same-sex Civil Union for Entitlement to Lump-Sum Death Payment and Widower’s Insurance Benefits – Florida

Date: December 4, 2015

1. SYLLABUS:

The number holder (NH) and claimant entered into a civil union in August 2004 in Vermont. Same-sex civil unions entered into in Vermont from July 1, 2000 through September 1, 2009 are valid under state law, and couples have all the same benefits, protections, and responsibilities granted to spouses in a civil marriage. The NH died in June 2015 while domiciled in Florida and the claimant filed for widow’s insurance benefits (WIB) and the lump-sum death payment (LSDP) on the NH’s record in August 2015. Since the NH was a resident of Florida at the time of death, we look to Florida law to determine if we would recognize the claimant’s and NH’s Vermont civil union as a valid marriage. Although the NH’s death certificate describes the NH’s marital status as “divorced” and indicates she does not have a surviving spouse, her death certificate identifies the claimant as an informant and describes the claimant’s relationship to the NH as “spouse.”

In Florida, the general rule is that the law of the jurisdiction in which a marriage was entered determines the validity of a marriage. Based on the facts that a Vermont civil union is equivalent to a marriage under Vermont law, Florida stopped denying recognition of same-sex marriages as of January 5, 2015, and a court decision suggests Florida courts would recognize a Vermont civil union as a valid marriage from another state, we conclude that Florida courts would find the claimant and NH were validly married when the NH.

2.  Opinion

QUESTION

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

OPINION

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.

BACKGROUND

According to the information provided, J~ (Claimant) and E~ (NH) entered into a civil union on August XX, 2004, in Vermont. A copy of their Vermont License and Certificate of Civil Union indicates they were issued on August XX, 2004, and registered on August XX, 2004. NH’s death certificate indicates she died on June XX, 2015, and resided in Florida at the time of her death. Although NH’s death certificate describes NH’s marital status as “divorced” and indicates she did not have a surviving spouse, her death certificate identifies Claimant as an informant and describes Claimant’s relationship to NH as “spouse.” On August XX, 2015, Claimant applied for Widow’s Insurance Benefits (WIB) and the lump-sum death payment on NH’s earnings record.

DISCUSSION1

A claimant may be eligible for the lump-sum death payment and WIB if the claimant is the widow of an individual who died fully or currently insured. See Social Security Act (Act) § 202(f)(1); 202(i); 20 C.F.R. §§ 404.335(a), 404.390, 404.391 (2015).2 A claimant may qualify as the widow 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), 404.345; Program Operations Manual System (POMS) GN 00305.001(A)(2)(b). NH was a resident of Florida when she died. Therefore, we look to Florida law to determine if Florida would recognize Claimant’s and NH’s Vermont civil union as a valid marriage.3

Due to state statutes and State Constitutional provisions, Florida previously refused to recognize same-sex marriages, 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 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, even though Florida does not recognize common law marriages after 1968, Florida 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).

Similarly, Florida courts have examined relationships from other jurisdictions that are not called marriages to determine whether Florida would recognize the relationship as a marriage. In American Airlines, Inc. v. Mejia, 766 So. 2d 305, 308-09 (Fla. Ct. App. 2000), the court evaluated whether a Colombian Unión Marital de Hecho (“Unión”) was a marriage for Florida purposes in a wrongful death suit.4 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 provided a Certificate of Civil Union issued in Vermont in August 2004.5 Civil unions entered into in Vermont from July 1, 2000, through September 1, 2009, are valid in Vermont.6 See Vt. Stat. Ann. tit. 15, § 1202 (portions repealed by Vt. Stat. Ann. tit. 15, § 8 (West 2009)); 1204(a) (West 2000); POMS GN 00210.004.D. Vermont law does not define a civil union between partners of the same sex as a marriage. See Miller-Jenkins v. Miller-Jenkins, 912 A. 2d 951, 962 (Vt. 2006) (citing Baker v. State, 744 A.2d 864, 869 (Vt. 1999)). However, under Vermont law, same-sex couples in a civil union have all of the same benefits, protections, and responsibilities as Vermont grants to spouses in a civil marriage. See Vt. Stat. Ann. tit. 15, §§ 1201(2), 1204 (West 2015);7 see also Baker, 744 A. 2d at 886 (finding a State constitutional obligation to extend to same-sex couples the common benefit, protection, and security that Vermont law provides to opposite-sex married couples).

The court in American Airlines 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. See American Airlines, 766 So. 2d at 308-09. In particular, the evaluation should focus on whether the non-marriage relationship results in treating the parties the same as if they were married. Because Vermont law mandates the same treatment for same-sex civil unions and civil marriages, the analysis of American Airlines applied to a Vermont civil union suggests Florida would recognize the Vermont civil union as a marriage.

Lending further credence to this conclusion, it has long been the law of Florida that granting a divorce concedes that a valid marriage in fact exists. See Oliver v. Stufflebeam, 155 So. 3d 395, 397 (Fla. Dist. Ct. App. 2014) (quoting Kuehmsted v. Turnwall, 138 So. 775, 777 (Fla. 1932)); see also 21 Patrick John McGinley, Fla. Prac., Elements of an Action § 301:1 (2014) (noting dissolution of marriage may not be granted in the absence of any of several elements, one of which is a valid marriage). On December 8, 2014, the circuit court in Broward County, Florida, in a non-precedential decision arising from proceedings over a petition for dissolution of a Vermont civil union, held that the Florida constitutional and statutory provisions denying marriage to same-sex couples and Florida’s failure to recognize out-of-State civil unions were unconstitutional. See In re: the Marriage of Heather Brassner and Megan E. Lade, Case No. 13-012058(37), Order Granting Pet’r’s Mot. for Declaratory J., 16-17 (Fla. Cir. Ct. Dec. 8, 2014), found at http://www.miamiherald.com/news/local/community/gay-south-florida/article4577935.ece/BINARY/Broward%20Circuit%20Judge%20Dale%20Cohen's%20Dec.%208,%202014,%20order (last visited Oct. 2, 2015). Shortly thereafter, on December XX, 2014, the court ordered the civil union dissolved. See Brassner, Default J. of Dissolution of Civil Union, 2, found at http://www.miamiherald.com/incoming/article4625412.ece/BINARY/Heather%20Brassner%20divorce%20-%20final%20judgment (last visited Oct. 2, 2015). The Brassner court dissolved a Vermont civil union over the express objections of the Florida Attorney General, who had argued in part that no Florida appellate court had equated a Vermont civil union to a marriage for purposes of the dissolution of a marriage. See Brassner, State of Fla. Mem. of Law in Opp’n to Pet’r’s Mot. for Declaratory Relief, 2 found at http://www.miamiherald.com/news/local/community/gay-south-florida/article3320084.ece/BINARY/Read%20Pam%20Bondi's%20 memorandum%20opposing%20a%20lesbian's%20divorce (last visited Oct. 1, 2015). By dissolving the Vermont civil union, the Brassner court equated the civil union with a marriage under Florida law. See Oliver, 155 So. 3d at 397; Kuehmsted, 138 So. at 777. However, we note that the Brassner decision comes from a trial court, not an appellate court and its decision is not binding on other courts. See Dep’t of Highway & Motor Vehicles v. Robinson, 93 So. 3d 1090, 1094 (Fla. Dist. Ct. App. 2012).

Thus, because (1) the Vermont civil union is equivalent to a marriage under Vermont law, (2) Florida stopped denying recognition of same-sex marriages as of January 5, 2015,8 and (3) the Brassner decision suggests Florida courts would recognize a Vermont civil union as a valid marriage from another State, we conclude that Florida courts would find Claimant and NH were validly married when NH died. 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

Florida courts would find Claimant and NH were validly married when NH died.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: Natalie Liem

Assistant Regional Counsel

B. PR 16-035 Validity of Vermont Same-sex Civil Union for Entitlement to Lump-Sum Death Payment and Widower’s Insurance Benefits – Florida

Date: November 20, 2015

1. Syllabus

The number holder (NH) and claimant entered into a civil union in Vermont in August 2000. The NH died in June 2014 while domiciled in Florida. The claimant filed for widower’s insurance benefits (WIB) and the lump-sum death payment (LSDP) on the NH’s earnings record in June 2014. The claimant’s application was denied September 2014. The claimant filed for reconsideration in October 2014. The claimant can qualify as the widower if the Florida courts find the claimant and NH were validly married when the NH died. Therefore, we look to Florida law to determine if Florida would recognize the Vermont civil union as a valid marriage. The general rule in Florida is that the law of the jurisdiction in which a marriage was entered determines the validity of a marriage. The courts found the NH and claimant were validly married when the NH died under Florida law for purposes of determining the claimant’s 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 civil union in Vermont, were validly married under Florida law for purposes of determining Claimant’s entitlement to Title II benefits on NH’s earnings record.

OPINION

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.

BACKGROUND

According to the information provided, T~ (Claimant) and M~ (NH) entered into a civil union in Vermont on August XX, 2000. A copy of a Vermont License and Certificate of Civil Union indicates it was issued on July XX, 2000, and registered on August XX, 2000. NH’s Numident indicates the Social Security Administration (SSA) received an Electronic Death Registration (EDR) Report from Florida that the NH died on June XX, 2014.9 NH’s Master Benefit Record (MBR) indicates his address was updated September XX, 2012, to reflect a move to I~, Florida. Claimant filed a claim for widower’s insurance benefits (WIB) and the Lump Sum Death Payment on NH’s earnings record on June XX, 2014. Claimant’s application indicates that he was living with NH in I~, Florida when NH died. SSA denied Claimant’s application on September XX, 2014. Claimant filed for reconsideration on October XX, 2014.

DISCUSSION10

A claimant may be eligible for the lump-sum death payment and WIB if the claimant is the widower of an individual who died fully or currently insured. See Social Security Act (Act) § 202(f)(1); 202(i); 20 C.F.R. §§ 404.335(a), 404.390, 404.391 (2015).11 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), 404.345; POMS GN 00305.001(A)(2)(b). NH was a resident of Florida when he died. Therefore, we look to Florida law to determine if Florida would recognize Claimant’s and NH’s Vermont civil union as a valid marriage.12

Due to state statutes and State Constitutional provisions, Florida previously refused to recognize same-sex marriages 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 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, even though Florida does not recognize common law marriages after 1968, Florida 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).

Similarly, Florida courts have examined relationships from other jurisdictions that are not called marriages to determine whether Florida would recognize the relationship as a marriage. In American Airlines, Inc. v. Mejia, 766 So. 2d 305, 308-09 (Fla. Ct. App. 2000), the court evaluated whether a Colombian Unión Marital de Hecho (“Unión”) was a marriage for Florida purposes in a wrongful death suit.13 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 union issued in Vermont in July 2000.14 Civil unions entered into in Vermont from July 1, 2000, through September 1, 2009, are valid in Vermont.15 See Vt. Stat. Ann. tit. 15, § 1202 (portions repealed by Vt. Stat. Ann. tit. 15, § 8 (West 2009)); 1204(a) (West 2000); POMS GN 00210.004.D. Vermont law does not define a civil union between partners of the same sex as a marriage. See Miller-Jenkins v. Miller-Jenkins, 912 A. 2d 951, 962 (Vt. 2006) (citing Baker v. State, 744 A.2d 864, 869 (Vt. 1999)). However, under Vermont law, same-sex couples in a civil union have all of the same benefits, protections, and responsibilities as Vermont grants to spouses in a civil marriage. See Vt. Stat. Ann. tit. 15, §§ 1201(2), 1204 (West 2015);16 see also Baker, 744 A. 2d at 886 (finding a State constitutional obligation to extend to same-sex couples the common benefit, protection, and security that Vermont law provides to opposite-sex married couples).

The court in American Airlines 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. See American Airlines, 766 So. 2d at 308-09. Particularly, the evaluation should focus on whether the non-marriage relationship results in treating the parties the same as if they were married. Because Vermont law mandates the same treatment for same-sex civil unions and civil marriages, the analysis of American Airlines applied to a Vermont civil union suggests Florida would recognize the Vermont civil union as a marriage.

Lending further credence to this conclusion, it has long been the law of Florida that granting a divorce concedes that a valid marriage in fact exists. See Oliver v. Stufflebeam, 155 So. 3d 395, 397 (Fla. Dist. Ct. App. 2014) (quoting Kuehmsted v. Turnwall, 138 So. 775, 777 (Fla. 1932)); see also 21 Patrick John McGinley, Fla. Prac., Elements of an Action §301:1 (2014) (noting dissolution of marriage may not be granted in the absence of any of several elements, one of which is a valid marriage). On December 8, 2014, the circuit court in Broward County, Florida, in a non-precedential decision arising from proceedings over a petition for dissolution of a Vermont civil union, held that the Florida constitutional and statutory provisions denying marriage to same-sex couples and Florida’s failure to recognize out-of-State civil unions were unconstitutional. See In re: the Marriage of Heather Brassner and Megan E. Lade, Case No. 13-012058(37), Order Granting Pet’r’s Mot. for Declaratory J., 16-17 (Fla. Cir. Ct. Dec. 8, 2014), found at http://www.miamiherald.com/news/local/community/gay-south-florida/article4577935.ece/BINARY/Broward%20Circuit%20Judge%20Dale%20Cohen's%20Dec.%208,%202014,%20order (last visited Oct. 2, 2015). Shortly thereafter, on December 18, 2014, the court ordered the civil union dissolved. See Brassner, Default J. of Dissolution of Civil Union, 2, found at http://www.miamiherald.com/incoming/article4625412.ece/BINARY/Heather%20Brassner%20divorce%20-%20final%20judgment (last visited Oct. 2, 2015). The Brassner court dissolved a Vermont civil union over the express objections of the Florida Attorney General, who had argued in part that no Florida appellate court had equated a Vermont civil union to a marriage for purposes of the dissolution of a marriage. See Brassner, State of Fla. Mem. of Law in Opp’n to Pet’r’s Mot. for Declaratory Relief, 2 found at http://www.miamiherald.com/news/local/community/gay-south-florida/article3320084.ece/BINARY/Read%20Pam%20Bondi's%20memorandum%20opposing%20a%20lesbian's%20divorce (last visited Oct. 1, 2015). By dissolving the Vermont civil union, the Brassner court equated the civil union with a marriage under Florida law. See Oliver, 155 So. 3d at 397; Kuehmsted, 138 So. at 777. However, we note that the Brassner decision comes from a trial court, not an appellate court and its decision is not binding on other courts. See Dep’t of Highway & Motor Vehicles v. Robinson, 93 So. 3d 1090, 1094 (Fla. Dist. Ct. App. 2012).

Thus, because (1) the Vermont civil union is equivalent to a marriage under Vermont law, (2) Florida stopped denying recognition of same-sex marriages as of January 5, 201517 , and (3) the Brassner decision suggests Florida courts would recognize a Vermont civil union as a valid marriage from another State, we conclude Florida courts would find Claimant and NH were validly married when NH died. 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

Florida courts would find Claimant and NH were validly married when NH died.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: Laura Verduci

Assistant Regional Counsel

C. PR 16-030 Validity of Vermont Same-sex Civil Union for Entitlement to Husband’s Insurance Benefits – Florida

Date: November 18, 2015

1. Syllabus

The number holder (NH) and claimant entered into a civil union in September 2000 in Vermont. Civil unions entered into in Vermont from July 1, 2000 through September 1, 2009 are valid. The NH currently receives retirement benefits and the claimant filed for spouse’s benefits on the NH’s record in April 2015. The claimant and NH lived in Florida at the time of application, therefore we look to Florida intestacy law to determine whether the Vermont civil union between the couple would permit the claimant to inherit a spouse’s share of the NH’s intestate property. Vermont law does not define a civil union between partners of the same-sex as a marriage, however, same-sex couples in a civil union have all the same benefits, protections, and responsibilities granted to spouses in a civil marriage. Because Vermont law mandates the same treatment for same-sex civil unions and civil marriages, Florida courts would also recognize the Vermont civil union as a valid marriage from another state. Therefore, the claimant is validly married to the NH under Florida law for purposes of determining 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 union in Vermont, 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 the NH’s spouse.

BACKGROUND

According to the information provided, R~ (Claimant) and R~ (NH) entered into a civil union, on September XX, 2000, in B~, Vermont. Both Claimant and NH are male. NH currently receives old-age insurance benefits. On April 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.

DISCUSSION18

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).19 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. In the case of a non-marital legal relationship, a claimant may meet the spousal relationship requirement if the claimant can inherit a husband’s, wife’s, widow’s or widower’s share of the insured’s personal property under the intestate succession laws of the State where the insured individual is living when the claimant filed his application. See Act. § 216(h)(1)(A)(ii); 20 C.F.R. §§ 404.335(a)(1), 404.345; Program Operations Manual System (POMS) GN 00210.004(A), (B)(2). NH lived in Florida when Claimant applied for HIB on NH’s earnings record. Claimant and NH entered into a civil union and not a marriage under Vermont law. Therefore, we look to Florida intestacy law to determine whether the Vermont civil union 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).20 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 a civil union 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 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.

However, the questions remain whether Florida would recognize a Vermont civil union as a marriage and, if not, whether Florida would nevertheless allow a member of a Vermont civil union to inherit as a spouse. See POMS GN 0210.004(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, Florida 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).

Similarly, Florida courts have examined relationships from other jurisdictions that are not marriages to determine whether Florida would recognize the relationship as a marriage. The Florida courts have held they 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).21 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 union issued in Vermont in September 2000.22 Civil unions entered into in Vermont from July 1, 2000 through September 1, 2009 are valid in Vermont.23 See Vt. Stat. Ann. tit. 15, §§ 1202 (portions repealed by Vt. Stat. Ann. tit. 15, § 8 (2009)); 1204(a) (2000); POMS GN 00210.004.D. Vermont law does not define a civil union between partners of the same sex as a marriage. See Miller-Jenkins v. Miller-Jenkins, 912 A. 2d 951, 962 (Vt. 2006) (citing Baker v. State, 744 A.2d 864, 869 (Vt. 1999)). However, under Vermont law, same-sex couples in a civil union have all of the same benefits, protections, and responsibilities as Vermont grants to spouses in a civil marriage. See Vt. Stat. Ann. tit. 15, §§ 1201(2), 1204 (West 2015);24 see also Baker, 744 A. 2d at 886 (finding a State constitutional obligation to extend to same-sex couples the common benefit, protection and security that Vermont law provides to opposite-sex married couples).

Because Vermont law mandates the same treatment for same-sex civil unions and civil marriages, the analyses of Smith and American Airlines applied to a Vermont civil union suggests Florida would recognize the Vermont civil union as a marriage. In both Smith and American Airlines, the courts 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. Particularly, under the analysis of American Airlines, the 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 ORCC for Region I, we conclude Vermont statute and case law require that parties to civil unions be treated the same as those to a marriage. This suggests that Florida courts would find a Vermont civil union equivalent to a marriage.

Lending further credence to this conclusion, it has long been the law of Florida that granting a divorce concedes that a valid marriage in fact exists. See Oliver v. Stufflebeam, 155 So. 3d 395, 397 (Fla. Dist. Ct. App. 2014) (quoting Kuehmsted v. Turnwall, 138 So. 775, 777 (Fla. 1932); see also 21 Patrick John McGinley, Fla. Prac., Elements of an Action §301:1 (2014) (noting dissolution of marriage may not be granted in the absence of any of several elements, one of which is a valid marriage). In a non-precedential decision on December 8, 2014, the circuit court in Broward County, Florida, in proceedings over a petition for dissolution arising from a Vermont civil union, held that the Florida constitutional and statutory provisions denying marriage to same-sex couples and Florida’s failure to recognize out-of-State civil unions were unconstitutional. See In re: the Marriage of Heather Brassner and Megan E. Lade, Case No. 13-012058(37), Order Granting Pet’r’s Mot. for Declaratory J., 16-17 (Fla. Cir. Ct. Dec. 8, 2014), found at http://www.miamiherald.com/news/local/community/gay-south-florida/article4577935.ece/BINARY/Broward%20Circuit%20Judge%20Dale%20Cohen's%20Dec.%208,%202014,%20order (last visited June 5, 2015). Shortly thereafter, on December 18, 2014 the court ordered the civil union dissolved. See Brassner, Default J. of Dissol. of Civil Union, 2, found at http://www.miamiherald.com/incoming/article4625412.ece/BINARY/Heather%20Brassner%20divorce%20-%20final%20judgment (last visited June 5, 2015). The Brassner court dissolved a Vermont civil union over the express objections of the Florida Attorney General, who had argued in part that no Florida appellate court had equated a Vermont civil union to a marriage for purposes of the dissolution of a marriage. See Brassner, State of Fla. Mem. of Law in Opp’n to Pet’r’s Mot. for Declaratory Relief, 2 found at http://www.miamiherald.com/news/local/community/gay-south-florida/article3320084.ece/BINARY/Read%20Pam%20Bondi's%20memorandum%20opposing%20a%20lesbian's%20divorce (last visited June 5, 2015). By dissolving the Vermont civil union, the Brassner court equated the civil union with a marriage under Florida law. See Oliver, 155 So. 3d at 397; Kuehmsted, 138 So. At 777. However, we note that the Brassner decision comes from a trial court, not an appellate court and its decision is not binding on other courts. See Dep’t of Highway & Motor Vehicles v. Robinson, 93 So. 3d 1090, 1094 (Fla. Dist. Ct. App. 2012).

Thus, because (1) the Vermont Civil Union is equivalent to a marriage under Vermont law, (2) Florida now recognizes same-sex marriages from other States, and (3) the Brassner decision suggests Florida courts would recognize a Vermont civil union as a valid marriage from another State, we conclude Florida courts would find Claimant and NH are validly married. In the alternative, because the Vermont civil union includes all the benefits a spouse is due in a marriage, including the right to inherit from one’s partner through intestacy (see Vt. Stat. Ann. tit. 15, § 1204(e)(1)), we conclude Florida courts would find Claimant could inherit a spouse’s share of NH’s estate under Florida law. 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 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: Christopher Yarbrough

Assistant Regional Counsel


Footnotes:

[1]

All conclusions in this opinion related to Vermont law are based on advice in an earlier matter from the Office of the Regional Chief Counsel (ORCC) for Region I.

[2]

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

[3]

We need not determine whether Claimant would inherit a spouse’s share of NH’s intestate property in Florida because we find Florida would recognize the Vermont civil union as a marriage. See Act § 216(h)(1)(A)(ii) (providing SSA considers whether the applicant would inherit a spouse’s share of intestate property if the courts of the NH’s domicile would not find the claimant and NH were validly married at the time of NH’s death).

[4]

In analyzing the non-marital union at issue in American Airlines, the court also relied on language in Fla. Stat. Ann. § 741.212(3), indicating that Florida statutes only recognize a non-marital relationship as a marriage if the relationship is a legal union between one man and one woman as husband and wife. See American Airlines, 766 So. 2d at 307. 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, 135 S. Ct. at 2604-05, 2607-08.

[5]

The certificate of civil union appears valid on its face and an SSA employee signed a stamp on the photocopy provided asserting that the original appeared to be genuine and unaltered. See Anderson, 577 So. 2d at 660 (“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”); Guelman v. De Guelman, 453 So. 2d 1159, 1160 (Fla. Dist. Ct. App. 1984) (stating: “It 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”).

[6]

Effective September 1, 2009, Vermont permitted civil marriage for same-sex couples. See Vt. Stat. Ann. tit. 15, § 8 (2009); 1 Karen Moulding & Nat’l Lawyers Guild, Lesbian, Gay, Bisexual and Transgender Committee, Sexual Orientation and the Law § 2:31 (2014).

[7]

Citations to the Vt. Stat. Ann. are to the West 2015 version unless otherwise specified.

[8]

NH died on June, 2015, prior to Florida’s initial recognition of same sex marriages and the Supreme Court’s June 26, 2015 Obergefell decision holding State bans on same-sex marriages invalid. See POMS GN 00210.003(A); POMS PR 05825.011; Obergefell, 135 S. Ct. at 2604-05, 2607-08. However, on September 10, 2015, 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. Although POMS GN 00210.003(A)(1) provides September 1, 2009, as the date same-sex marriages were recognized in Vermont, as noted above, because Vermont law mandates the same treatment for same-sex civil unions and civil marriages prior to that time, Florida would likely recognize Claimant’s and NH’s Vermont civil union as a valid marriage at the time it was celebrated in August 2004.

[9]

Program Operations Manual System (POMS) GN 00304.10(A) indicates that data shown on the Numident can be used as preferred proof of death for claims processing when the data was established on the Numident based on an EDR report.

[10]

All conclusions in this opinion related to Vermont law are based on advice from the Office of the Regional Chief Counsel (ORCC) for Region I in an earlier matter.

[11]

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

[12]

The Regional Office asked if the Claimant’s Vermont civil union imposed spousal inheritance rights in Florida. However, we need not determine whether Claimant would inherit a spouse’s share of NH’s intestate property in Florida because we find Florida would recognize the Vermont civil union as a marriage. See Act § 216(h)(1)(A)(ii) (providing SSA considers whether the applicant would inherent a spouse’s share of intestate property if the courts of the NH’s domicile would not find the claimant and NH were validly married at the time of NH’s death).

[13]

In analyzing the non-marital union at issue in American Airlines, the court also relied on language in Fla. Stat. Ann. § 741.212(3) indicating Florida statutes only recognize a non-marital relationship as a marriage if the relationship is a legal union between one man and one woman as husband and wife. See American Airlines, 766 So. 2d at 307. 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, 135 S. Ct. at 2604-05, 2607-08.

[14]

The certificate of civil union appears valid on its face and an SSA employee signed a stamp on the photocopy provided asserting that the original appeared to be genuine and unaltered. See Anderson, 577 So. 2d at 660 (“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.”); Guelman v. De Guelman, 453 So. 2d 1159, 1160 (Fla. Dist. Ct. App. 1984) (“It 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.”).

[15]

Effective September 1, 2009, Vermont permitted civil marriage for same-sex couples. See Vt. Stat. Ann. tit. 15, § 8 (2009); 1 Karen Moulding & Nat’l Lawyers Guild, Lesbian, Gay, Bisexual and Transgender Committee, Sexual Orientation and the Law § 2:31 (2014).

[16]

Citations to the Vt. Stat. Ann. are to the West 2015 version unless otherwise specified.

[17]

NH died on June XX, 2014, prior to Florida’s initial recognition of same sex marriages and the Supreme Court’s June 26, 2014 Obergefell decision holding State bans on same-sex marriages invalid. See POMS GN 00210.003(A); POMS PR 05825.011; Obergefell, 135 S. Ct. at 2604-05, 2607-08. However, on September 10, 2015, 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. Although POMS GN 00210.003(A)(1) provides September 1, 2009, as the date same-sex marriages were recognized in Vermont, as noted above, because Vermont law mandates the same treatment for same-sex civil unions and civil marriages prior to that time, Florida would likely recognize Claimant’s and NH’s Vermont civil union as a valid marriage at the time it was celebrated in July 2000.

[18]

All conclusions in this opinion related to Vermont law are based on advice from the Office of the Regional Chief Counsel (ORCC) for Region I.

[19]

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

[20]

The proportion of the estate the surviving spouse takes varies depending on the existence of descendants of the decedent and the spouse. See Fla. Stat. Ann. § 732.102.

[21]

The language limiting marriage to one man and one woman referenced by the court relied on Fla. Stat. Ann. § 741.212(3). See id. 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, 135 S. Ct. at 2605.

[22]

The certificate of civil union appears valid on its face and an SSA employee signed a stamp on the photocopy provided asserting that the original appeared to be genuine and unaltered. See Anderson, 577 So. 2d at 660 (“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.”); Guelman v. De Guelman, 453 So. 2d 1159, 1160 (Fla. Dist. Ct. App. 1984) (“It 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.”).

[23]

Effective September 1, 2009, Vermont permitted civil marriage for same-sex couples. See Vt. Stat. Ann. tit. 15, § 8 (2009); 1 Karen Moulding & Nat’l Lawyers Guild, Lesbian, Gay, Bisexual and Transgender Committee, Sexual Orientation and the Law § 2:31 (2014).

[24]

Citations to the Vt. Stat. Ann. are to the West 2015 version unless otherwise specified.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505840011
PR 05840.011 - Florida - 10/17/2016
Batch run: 10/17/2016
Rev:10/17/2016