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.
Claimant is validly married to NH under Florida law for determining Claimant’s entitlement
to Title II benefits as the NH’s spouse.
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.
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). 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
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 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). 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.
In this case, Claimant and NH provided a certificate of civil union issued in Vermont
in September 2000. Civil unions entered into in Vermont from July 1, 2000 through September 1, 2009
are valid in Vermont. 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); 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
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.
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