QUESTION PRESENTED
Is G~ (Claimant), a widower, entitled to a lump-sum death benefit based upon his marriage
to S~, the number holder (NH), where the marriage was performed in the Netherlands
and the NH resided in New York State when he died?
OPINION
New York State, the domicile of the NH at the time of his death, recognizes same-sex
marriages validly entered into in foreign jurisdictions. The Netherlands has statutorily
recognized same-sex marriages since April 1, 2001. If the agency determines that the
evidence submitted by Claimant demonstrates that Claimant and the NH validly entered
into their marriage in the Netherlands on April XX, 2010, New York State would recognize
the marriage. The marriage lasted longer than nine months immediately preceding the
NH’s death and Claimant lived with the NH when he died. Accordingly, assuming there
is sufficient proof of Claimant and the NH’s Netherlands marriage, Claimant would
be a widower and would be entitled to a lump-sum death payment on the NH’s record.
BACKGROUND
According to translations of the submitted marriage document, [1] Claimant and the NH were married in A~, the Netherlands, on April XX, 2010. The marriage
document was executed by the Mayor of A~, issued by the Office of Civil Registry and
Office of the Mayor, and bears the signature of the registrar and what appears to
be either the seal or stamp of the Civil Registry. The document lists the United States
as the birthplace of both Claimant and the NH.
The NH filed for Social Security Disability benefits on April XX, 2013, listing a
residence in New York State. The NH died on June XX, 2013, in L~, New York. Claimant
was living with the NH at the time of the NH’s death.
LEGAL FRAMEWORK
A. Social Security Act and Regulations
The widower of an individual who was fully or currently insured upon his or her death,
is entitled to a lump sum payment of the smaller of $255 or three times the individual’s
primary insurance amount. 42 U.S.C. § 402(i); 20 C.F.R. § 404.390. A widower is the
surviving husband of an individual if he was married to the individual for not less
than nine months immediately prior to the day on which the individual died. 42 U.S.C.
§ 416(g)(1). An applicant for a lump sum payment is a widower of an individual who
was fully or currently insured upon his or her death, if the courts of the state in
which the insured individual was domiciled at the time of death would find that the
applicant and insured individual were validly married when the insured died. 42 U.S.C.
§ 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. To qualify for the lump sum payment,
the widower must have been living in the same household with the deceased number holder
at the time of the number holder’s death. 42 U.S.C. § 402(i); 20 C.F.R. §§ 404.347,
404.390.
B. New York State Law Regarding Same-Sex Marriage
New York State long defined marriage as the voluntary union of one man and one woman
as husband and wife. See Hernandez v. Robles, 855 N.E.2d 1, 6, 9-12 (N.Y. 2006) (holding constitutional “New York’s statutory law
[that] clearly limits marriage to opposite-sex couples”). Same-sex marriage has only
been legal in New York State since the Marriage Equality Act took effect on July 24,
2011, N.Y. Dom. Rel. Law § 10-a (McKinney 2013).
However, New York law recognized same-sex marriages lawfully solemnized outside of
the state, including in foreign countries, before the enactment of the Marriage Equality
Act. On February 1, 2008, a New York appellate court held that New York would recognize
same-sex marriages validly entered into in other jurisdictions, including the July
2004 Ontario, Canada same-sex marriage at issue before the court. Martinez v. County of Monroe, 850 N.Y.S.2d 740, 742 (4th Dept. 2008), leave to appeal denied, 859 N.Y.S. 2d 617,
889 N.E.2d 496 (2008). [2] In 2011, the State of New York, through Attorney General Eric T. S, filed an amicus
brief in the District Court for the Southern District of New York, reinforcing its
position that, “New York has long recognized as valid same-sex marriages that were
solemnized under the laws of other States or nations.” Defendant United States’ Memorandum
of Law in Response to Plaintiff’s Motion for Summary Judgment and Intervenor’s Motion
to Dismiss, Windsor v. U.S., No. 10-CV-8435, 2011 WL 3754396 (S.D.N.Y. Aug. 19, 2011) (citing Brief for the State of New York
as Amicus Curiae in Support of the Plaintiff, ECF 40-1 at 1). In Windsor’s challenge to the constitutionality of the Defense of Marriage Act, the Supreme Court
noted, “New York deems [Windsor’s] Ontario marriage to be a valid one.” U.S. v. Windsor, -- U.S. --, 133 S.Ct. 2675, 2683 (2013).
The decision in M considered together with the 2011 amicus brief filed by the State of New York and
the Supreme Court’s decision in Windsor, all support the conclusion that New York has recognized same-sex marriages validly
entered into in other jurisdictions since at least February 1, 2008.
C. Dutch Law Regarding Same-Sex Marriage
Same-sex marriages have been legal in the Netherlands since the Dutch parliament,
on December 21, 2000, amended Book I, Title 5, Article 30 of the country’s Civil Code,
effective April 1, 2001. See Act of 21 Dec. 2000 on the Opening of Marriage, Staatsblad 2001, Nr. 9 (amending Burgerlijk
Wetboek[Civil Code], Boek 1, Art. 30:1). [3] Pursuant to Article 30 of the Civil Code, a marriage may be entered into by two persons
of either a different sex or of the same sex. Burgerlijk Wetboek, Boek 1, Personen-
en familierecht [Civil Code Book 1, Family Law and the Law of Persons] (cited hereinafter
as Civil Code), available on the official Dutch government website at: http://wetten.overheid.nl/BWBR0002656/geldigheidsdatum_07-04-2014 (last visited on June 18, 2014). [4]
ANALYSIS
When the NH died on June XX, 2013, he was domiciled in New York State. He had been
married to Claimant since April XX, 2010. There is no evidence to indicate that the
marriage was dissolved. Therefore, Claimant was married to the NH for more than nine
months immediately before the NH’s death. Claimant also was living with the NH when
he died. Accordingly, Claimant is a widower pursuant to 42 U.S.C. § 416(g)(1), provided
that New York courts would find that he and the NH were validly married at the time
of the NH’s death.
A. New York Would Recognize Claimant and NH’s Dutch Marriage if the Submitted Marriage
Document is Acceptable Proof of their Marriage
New York law recognizes that “same-sex couples may legally marry in … the Netherlands.”
Godfrey v. Spano, 892 N.Y.S. 2d 272, 275 n.1 (N.Y. 2009); In re Adoption of Sebastion, 879 N.Y.S. 2d 677, 682 (N.Y. Sur. 2009)). Thus, Claimant and the NH’s marriage would
be recognized by New York courts if it was validly entered into in the Netherlands.
Same-sex marriage was legalized in the Netherlands on April 1, 2001. See Act of 21 Dec. 2000 on the Opening of Marriage. The submitted marriage document indicates
that Claimant and the NH were married in A~, the Netherlands, on April XX, 2010. If
this document is acceptable proof of their marriage, Claimant and the NH were validly
married under Dutch law and their marriage would therefore be recognized by New York
courts.
B. The Marriage Document Submitted with this Request Does Not Definitively Establish
Claimant’s Marriage to the NH
The preferred proof of a ceremonial marriage, such as the one between Claimant and
the NH, is “[a] copy of (or statement as to) a public record of marriage, certified
by the custodian of record.” POMS GN 00305.020(A)(1). Acceptable records for proving the marriage (or birth, death, or other relevant
information) are:
(1) the original record;
(2) an extract record, where the record custodian or SSA certifier takes information
from the original record and certifies it for accuracy;
(3) a certified photocopy to which the custodian of record affixes a signature, stamp
or seal with a statement attesting to the accuracy of the photocopy; and/or
(4) a true and exact copy prepared by an SSA certifier.
POMS GN 00301.030(A).
SSA will accept a photocopy of the original record or an extract only if the record
custodian signs or stamps a statement executed when the document is made or affixes
the seal of the record custodian’s office to the document. POMS GN 00301.080. If a claimant submits a document certified by the custodian of record, SSA assumes
it is valid if not otherwise questionable. POMS GN 00301.045(B)(1)(a).
The Agency must determine whether the document submitted by Claimant should be accepted
as proof of his marriage to the NH. As noted by the various translations, the document
is either a marriage certificate or an extract. The document bears a circular seal
or stamp translated as “Civil Registry A~,” was signed by the Registrar, and was issued
by the Office of Civil Registry and Office of the Mayor of A~ Municipality. POMS GN 00312.280 notes that a claimant seeking to obtain a certified copy of a marriage certificate
from the Netherlands for purposes of proving his or her marriage should contact the
Civil Registrar’s Office of the Burgomaster of the community in which the marriage
occurred. See also POMS GN 00312.001(A) (for general advice to claimants on obtaining certified foreign records). For
marriages performed in A~, POMS GN 00312.280 directs claimants to the Civil Registrar’s Office of A~, the very office that signed
and stamped or affixed the seal to the document submitted by Claimant. Thus, it is
likely that the document is certified by the custodian of record and may be preferred
proof of the Claimant’s ceremonial marriage.
A definitive conclusion cannot be reached at this time because, from the copy of the
document submitted to OGC, it is not possible to determine whether the circular mark
is a seal or a stamp. If the circular mark is a seal, nothing further is required
under POMS GN
00301.080 for the document’s accuracy and authenticity to be considered certified by the record
custodian; the document would therefore be preferred proof of the Claimant and NH’s
marriage under POMS GN 00305.020(A)(1). On the other hand, if the circular mark is a stamp, POMS GN 00301.080 requires a statement to be executed at the time the photocopy is made for the document’s
accuracy and authenticity to be considered certified. Here, the stamp does not appear
to include a statement executed when the photocopy was produced. The photocopy may
be a souvenir certificate, a possibility raised by the Library of Congress’s memorandum
to OGC, which is not preferred proof of marriage. POMS GN 00305.020(A). A souvenir certificate can, however, serve as secondary proof of the marriage,
which would still prove the marriage as long as the other procedures in POMS GN 00305.025(B)(1) are followed. [5]
CONCLUSION
If the Agency determines that the evidence submitted constitutes sufficient proof
that the Claimant and NH married in the Netherlands on April XX, 2010, New York courts
would recognize their marriage as of that date. It appears that they remained married
until the NH died on June XX, 2013, meaning that they were still validly married in
New York at the time of the NH’s death. Assuming there is sufficient proof of his
Netherlands marriage, Claimant would therefore be a widower and would be entitled
to a lump-sum death payment on the record of the NH.