The Claimant and the NH are domiciled in Texas. They registered their marriage with the Civil Register in Mexico City, Mexico and presented a marriage certificate issued by the Mexico City Civil Registry as proof of their marriage entered into on April XX, 2014. Thus, the Claimant has provided evidence to support a valid same-sex marriage entered into in Mexico City, Mexico. We believe Texas courts would recognize this valid same-sex marriage entered into in Mexico City, Mexico on April XX, 2014.

QUESTION

For purposes of F~(Claimant’s) application for spouse’s insurance benefits^[1] under Title II of the Social Security Act (Act) on the record of the number holder D~ (NH), you asked whether the Claimant is the NH’s spouse based on the same-sex marriage they entered into on April XX, 2014, in Mexico City, Mexico. It is our understanding that the NH and the Claimant are domiciled in Texas.

ANSWER

We believe Texas courts would find that the Claimant and the NH entered into a valid same-sex marriage under the laws of Mexico City, Mexico on April XX, 2014, as evidenced by a copy of a Mexico City marriage certificate.^[2] Thus, we believe there is legal support for the agency to find that the Claimant is the NH’s spouse for purposes of determining the Claimant’s entitlement to Title II spouse’s benefits on the NH’s record.

BACKGROUND

You advised that on March XX, 2023, the Claimant filed an application for spouse’s insurance benefits on the NH’s record alleging that he and the NH were married on April XX, 2014, in Mexico City, Mexico. You further advised that the Claimant and the NH live together in Houston, Texas. In support of their marriage in Mexico City, the Claimant provided a copy of what appears to be a signed and completed marriage certificate (Acta de Matrimonio) issued by the office of the Civil Registry of Mexico City (Gobierno Del Distrito Federal), General Directorate of Civil Registry Court 17, showing the NH and the Claimant as the contracting parties to the marriage and showing that the marriage was registered and recorded on April XX, 2014 and the certificate issued on May 8, 2014.^[3]

ANALYSIS

Federal Law: Entitlement to Spouse’s Insurance Benefits as a Spouse^[4]

Under Title II of the Act, a claimant may be entitled to spouse’s insurance benefits on an insured individual’s record if, among other things, the claimant is the spouse of the insured individual entitled to old-age or disabled insurance benefits and their marital relationship has lasted at least one year before the date the claimant filed the application for benefits. See 42 U.S.C. §§ 402(b), (c), 416(a)(1), (b), (f); 20 C.F.R. § 404.330(a); see also Program Operations Manual System (POMS) RS 00202.001B.

The agency will find a claimant to be an insured individual’s spouse if the courts of the State in which the insured individual was domiciled at the time the claimant filed the application would find that the claimant and the individual were validly married at the time the claimant filed the application, or if, under application of that State’s intestate succession laws, the claimant would be able to inherit a spouse’s share of the insured’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345.

With respect to the agency’s application of State marriage laws, we note that on June 26, 2015, in Obergefell v. Hodges, 576 U.S. 644, 674-677 (2015), the United States Supreme Court held State laws invalid to the extent that they exclude same-sex couples from marriage on the same terms and conditions as opposite-sex couples. Further, States must recognize valid same-sex marriages performed in other States. Id. at 680-681. Pursuant to Harper v. VirginiaDepartment of Taxation, 509 U.S. 86, 94-98 (1993), the agency 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, the agency will consider State-law same-sex marriage bans, whether based on State constitutional or statutory provisions or case law, void. The agency will apply the relevant law to the facts to evaluate marital status .

It is our understanding that the NH was domiciled in Texas when the Claimant filed the application for spouse’s benefits. Therefore, we look to Texas law to determine if the Claimant is the NH’s spouse.

Texas Law: Valid Foreign Marriage

Although traditionally, Texas courts applied the law of the place where the marriage occurred (place of celebration) to determine the validity of the marriage, more recent cases indicate that Texas courts apply the most significant relationship test of the Restatement (Second) of Conflict of Laws in determining which law to apply on the issue of the validity of a marriage entered into outside of Texas.^[5] See Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex. 1984); Cutler v. Cutler, 2016 WL 4444418, at *2 (Tex. App. – San Antonio Aug. 24, 2016, no pet.); Tex. Employers’ Ins. Ass’n v. Borum, 834 S.W.2d 395, 399 n.2 (Tex. App. – San Antonio 1992, writ denied); Seth v. Seth, 694 S.W.2d 459, 462-463 (Tex. App. – Fort Worth 1985, no writ). However, Texas will not enforce a foreign law that is contrary to Texas strong public policy. See Broussard v. Arnel, 596 S.W.3d 911, 917-918 (Tex. App. – Houston [1st Dist.] 2019, no pet.) (“regardless of which choice-of-law rule or test courts have applied, we have not found a single case holding that the law of another jurisdiction applies to compel a Texas court to recognize a marriage that is void under our laws”); Seth, 694 S.W.2d at 463 (under the particular facts of the case, noting that the “most critical consideration” of the most significant relationship test was the relevant policies of the forum, Texas).

Here, we have very little information about the couple’s relationship as it relates to Mexico and Texas. We only know that the couple married in Mexico City, Mexico in 2014 and that they currently live in Houston, Texas. As same-sex marriage is legal in Texas and Texas is required to recognize valid same-sex marriages from other States, we believe Texas would have no public policy objections to a valid same-sex civil marriage entered into in accordance with the laws of Mexico City, Mexico and further, that the outcome would be the same regardless of which law applied such that an extended discussion of the most significant relationship factors is not needed here.^[6] See Obergefell, 576 U.S. at 674-677, 680-681 ; De Leon v. Abbott, 791 F.3d 619 (5th Cir. 2015); see also In re Estate of Loveless, 64 S.W.3d 564, 575 (Tex. App. – Texarkana 2001, no pet.) (noting that courts addressing the issue of which law to apply to determine the validity of marriage after Seth have acknowledged the most significant relationship approach, but have also concluded that under the facts of those cases, there would be no difference in outcome under the law of either forum); Tex. Employers’ Ins. Ass’n, 834 S.W.2d at 399 n.2 (noting that a conflict of law analysis and application of the most significant relationship test was unnecessary where there is no difference in the outcome in application of the laws and thus no conflict exists); Williams v. Home Indem. Co., 722 S.W.2d 786, 787-788 (Tex. App. – Houston [14th Dist.] 1987, no writ) (noting that an extended discussion of which choice of law test to apply to the marriage claim was unnecessary given that the result was the same under the laws of Texas, Virginia, and New York).

Thus, we believe Texas courts would recognize a same-sex marriage validly entered into under the laws of Mexico City, Mexico. We next consider Mexico City laws on same-sex civil marriage and the evidence regarding the Claimant’s marriage to the NH.

Mexico Law: Valid Same-Sex Marriage in Mexico City, Mexico

Same-sex marriage has been legal in Mexico City, Mexico since March 4, 2010.^[7] See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1075 (9th Cir. 2017) (noting that a new law in 2010 legalized same-sex marriage in Mexico City, the Mexican Supreme Court required other Mexican states to recognize those marriages, and a 2010 law allowed same-sex couples to adopt children in Mexico City); Guzman-Hernandez v. U.S. Atty. Gen., 611 F.App’x 956, 960–61 (11th Cir. 2015) (noting same).

The Civil Code of Mexico City indicates that generally the civil status of individuals may be proved only with certificates and records kept by the Mexico City Civil Registry.^[8] The Civil Code also provides that certificates issued by the Mexico City Civil Registry are prima facie evidence that the facts certified therein were declared before a Civil Registry official, and that the statements made by the individuals who appear before the Civil Registry are deemed to be true until they are proven otherwise.^[9] Thus, a true copy of an original marriage certificate kept by the Civil Registry of Mexico City, Mexico is prima facie evidence of the facts certified therein – namely, that the couple was married before a Civil Registry official in Mexico City pursuant to the Civil Code.

Here, it appears that the Claimant and the NH registered their marriage with the Civil Register in Mexico City, Mexico and presented a marriage certificate issued by the Mexico City Civil Registry as proof of their marriage entered into on April XX, 2014. Thus, the Claimant has provided evidence to support a valid same-sex marriage entered into in Mexico City, Mexico. As explained above, we believe Texas courts would recognize this valid same-sex marriage entered into in Mexico City, Mexico on April XX, 2014.

CONCLUSION

We believe Texas courts would find that the Claimant and the NH entered into a valid same-sex marriage under the laws of Mexico City, Mexico on April XX, 2014, as evidenced by a copy of a Mexico City marriage certificate. Thus, we believe there is legal support for the agency to find that the Claimant is the NH’s spouse for purposes of determining the Claimant’s entitlement to Title II spouse’s benefits on the NH’s record.

(1) a court, subject to constitutional restrictions, will follow a statutory directive of its own State on choice of law;

(2) when there is no such directive, the factors relevant to the choice of the applicable rule of law include:

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum (the place of the trial),

(c) the relevant policies of other interested states and the relevant interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability, and uniformity of result, and

(g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws, Sec. 6 Choice-of-Law Principles (1971).

CodigoCivilDF_20151003.pdf , archived at https://perma.cc/LK95-QJ67 ; see also Press Release, Consejo para Prevenir y Eliminar la Discriminación de la Ciudad de México [Mexico City’s Council to Prevent and Eliminate Discrimination], Los matrimonios entre personas del mismo sexo son más estables [Same-Sex Marriages Are More Stable] (Mar. 4, 2016), http://copred.cdmx.gob.mx/prensa/pronunciamientos/pronunciamientos-2016/los-matrimoniosentre-personas-del-mismo-sexo-son-mas-estables , archived at https://perma.cc/FN2C-UFAQ).

The claimant and the number holder (NH) were legally married in California in March 2014.  The NH died in April 2014 in Mexico, less than one month after the marriage.  Under the law of the District of Columbia, the marriage that occurred in California would be recognized, but the marriage did not last at least nine months as required under sections 216(c), 216(g); therefore, the claimant is not entitled to Title II widower’s benefits on the record of the NH based on his valid marriage to the NH that occurred in California. Alternatively, the District of Columbia would recognize that the claimant could inherit as the NH’s widower based on their valid twenty-year concubinage relationship.  Accordingly, we believe the agency could find that the claimant could inherit from the NH to the same extent as a surviving spouse would and the claimant can be deemed the widower of the NH for survivor’s benefits based on his concubinage relationship with the NH in Jalisco, Mexico

Question Presented

Is J~ (Claimant) entitled to widower’s benefits on the record of C~, the number holder (NH)?

Short Answer

The claimant is the widower of the NH based on their 2014 California marriage. However, the marriage does not meet the nine month marriage durational requirement for entitlement to widower’s benefits^[10] . Nevertheless, the claimant can be deemed the widower of the NH based on his concubinage^[11] relationship with the NH in Jalisco, Mexico.

BACKGROUND

Claimant indicated that he and the NH lived in a “common law marriage” for twenty years prior to their ceremonial marriage. The claimant and the NH had a ceremonial marriage on March XX 2014, in California. No actions were taken to terminate the marriage prior to the NH’s death.

Both the claimant and the NH were living in Jalisco, Mexico on April XX, 2014, the date the NH died.

On July XX, 2014, the claimant applied for benefits as a widower on the NH’s account as the NH’s surviving spouse. You requested a legal opinion as to whether the claimant is the NH’s surviving spouse.

ANALYSIS

To be entitled to widower’s insurance benefits under the Act, a claimant must show, among other things, that he is the “widower” of an insured. 42 U.S.C. § 402(f)(1). As pertinent here, the Act provides two methods for a claimant to show he is the widow of an insured who was domiciled outside the United States.^[12] First, a claimant is the widow of such insured if the courts of the District of Columbia would find that the claimant was validly married to the insured at the time the insured died. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. The marriage between the claimant and NH must have also lasted nine months as of the NH’s death. 42 U.S.C. § 216(c), 216(g) of the Act; 20 C.F.R. § 404.335. Second, if the claimant was not validly married to such insured at the time the insured died, the claimant will be deemed to be the insured’s widow if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a widow of the insured with respect to the taking of such property. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

The marriage that occurred in California was valid, but it did not meet the nine-month durational requirement.

Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into.^[13] See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946).

Here, the claimant and the NH were legally married in California on March XX, 2014. The NH died on April XX, 2014 in Mexico, less than one month after the marriage. Under the law of the District of Columbia, the marriage that occurred in California would be recognized. However, the marriage did not last at least nine months as required under sections 216(c), 216(g) of the Act; 20 C.F.R. § 404.335. Therefore, the claimant is not entitled to Title II widower’s benefits on the record of the NH based on his valid marriage to the NH that occurred in California.

The claimant has the same status as a widower of the NH under the intestacy laws of Jalisco, Mexico.

Since the claimant did not meet the durational requirement for widower’s benefits based on the California marriage, we next examine whether the relevant law allows us to deem the claimant to be the NH’s widower based on their relationship while living in Jalisco, Mexico. If, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant has the “same status” as a widower of the NH with respect to the taking of such property based on the relationship, the agency can deem the claimant to be the widower of the NH. 42 U.S.C § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

Under District of Columbia law, the law of the decedent’s domicile determines intestate inheritance rights. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). Here, the NH was domiciled in Jalisco, Mexico at the time of death and had lived in Mexico with the claimant in what would be considered a concubinage relationship for approximately twenty years. Concubinage is a Mexican term for a relationship that we would equate with common law marriage. The Jalisco Civil Code provides for recognition of some legal effects derived from concubinage, provided that certain criteria are met.

Specifically, the Code provides that certain property may be inherited when a couple is in a concubinage. A concubinage requires that a man and a woman are single, live in the same domicile as if they were spouses for five years or longer.^[14] The person that survives the deceased individual, provided that both individuals were unmarried during their concubinage relationship, has the right to inherit from the deceased individual similar to a spouse.^[15] While the Jalisco Civil code does not appear to include a provision specifically allowing for same-sex couples to form concubinage relationships, in January 2016 Mexico’s Supreme Court voided language in Jalisco’s Civil code which described marriage as an institution between a man and a woman.^[16]

The Supreme Court noted that such discrimination violated equality and antidiscrimination pursuant to the relevant provisions of the Mexican Constitution; therefore, same-sex marriage was legalized in Jalisco, Mexico.^[17] Given the basis for the Jalisco Supreme Court’s decision, we can infer that the District of Columbia would likely find that that if a same-sex couple met the requirements of concubinage in Jalisco, they would be entitled to the same rights and benefits of such a relationship.

In the instant case, there is evidence that the NH and claimant lived together in the same domicile as if they were spouses for more than five years. Neither was married to another person. The last will and testament of the NH shows that the couple intended to live as a couple indefinitely. Additionally, they were married in California prior to the NH’s death showing their intention to remain in a legal union. As a result, we believe that the NH and the claimant could be described as having a concubinage relationship prior to their marriage. Therefore, the claimant would have the right to inherit as the NH’s spouse under the law of Jalisco Mexico. Accordingly, we believe the District of Columbia would recognize the claimant as the widower of the NH based on their twenty-year relationship in Mexico.

CONCLUSION

Although the claimant’s 2014 marriage to the NH was valid, it failed to meet the durational requirement for purposes of widower’s benefits. Alternatively, the District of Columbia would recognize that the claimant could inherit as the NH’s widower based on their valid twenty-year concubinage relationship. Accordingly, we believe the agency could find that the claimant could inherit from the NH to the same extent as a surviving spouse would.

The deceased wage earner (DWE) was domiciled in Arizona at the time of his death; therefore, we look to the Arizona to determine if the DWE and Claimant were validly married. The DWE and Claimant were married in Mexico City. Under Mexican law, parties must go through a civil ceremony to validate a marriage. The DWE and the Claimant registered their civil marriage and presented a marriage certificate issued by the Mexico City Civil Registry as proof of their marriage. Mexico began recognizing same-sex marriages in March 2010. As federal courts have recognized, the Supreme Court of Mexico ruled that same-sex marriages performed in Mexico City must be recognized nationwide; therefore, Arizona would also recognize their marriage as valid. The Claimant is eligible for widower’s benefits and a lump-sum death payment based on his marriage to the DWE.

QUESTION

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).

SHORT ANSWER

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.

RELEVANT LAW

Federal Law

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 Law

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^[18]

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.^[19] A marriage certificate issued by the Mexico City Civil Registry is prima facie evidence that the couple was married before a Civil Registry official.^[20] Mexico City, Mexico, began recognizing same-sex marriages effective March 4, 2010.^[21] 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).

ANALYSIS

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 in Canada).

CONCLUSION

For the purpose of establishing entitlement to widower’s benefits and the LSDP, Claimant has established that he was married to the DWE.