The number holder (NH) was domiciled in Oregon at the time of her death; therefore, we apply Oregon law to determine if the claimant was the NH’s spouse. The claimant presented an Oregon Public Employee Benefit Board (PEBB) Affidavit of Domestic Partnership document. We believe the courts of Oregon would find that the claimant cannot inherit as NH’s widower under Oregon law based on the Oregon PEBB Domestic Partnership document as it is not equivalent to a registered domestic partnership under Oregon domestic partnership law. Also, the claimant is not the NH’s widow based on the marriage ceremony held in California prior to the State’s legal recognition of same-sex marriages. In addition, neither California nor Washington permit common law marriage, so the claimant cannot be considered the NH’s widow, based on a same-sex common law marriage. Accordingly, we believe the agency is justified in finding that claimant is not NH’s widow or deemed widow under Title II and is not entitled to widow’s benefits on NH’s earnings record.

QUESTION PRESENTED

Issue: Whether ~DW (the claimant) is the widow of ~DB, the deceased number holder (NH), for purposes of the entitlement to widow’s benefits under title II of the Social Security Act (Act). The claimant presented evidence of a marriage ceremony in California prior to the State’s legal recognition of same-sex marriages. The claimant also presented an Oregon Public Employee Benefit Board (PEBB) Affidavit of Domestic Partnership document. You asked if the agency could find the claimant and the NH were legally married in the California ceremony. If not, could the agency find the couple had a common law marriage in California or Oregon? If no marriage can be found, could the agency deem the couple married based on their Oregon PEBB Affidavit of Domestic Partnership?[1]

BRIEF ANSWER

No. The claimant is not the NH’s widow based on the marriage ceremony held in California prior to the State’s legal recognition of same-sex marriages. In addition, neither California nor Washington permit common law marriage, so the claimant cannot be considered the NH’s widow on that basis. Finally, we believe the courts of Oregon would find that claimant cannot inherit as NH’s widower under Oregon law based on the Oregon PEBB Affidavit of Domestic Partnership document. Accordingly, we believe the agency would be justified in finding claimant is not NH’s widow or deemed widow under title II and therefore is not entitled to widow’s benefits on NH’s earnings record.

SUMMARY OF FACTS

In May 2001, before California law recognized same-sex marriages, the claimant alleges that she and the NH participated in a ceremonial marriage officiated by Reverend ~R G, a minister of the United Churches of Religious Science in Santa Rosa Sonoma County California. The claimant provided a certificate of marriage with the date of the ceremony, which she had notarized in California in November X, 2014. The claimant also provided an Oregon PEBB Affidavit of Domestic Partnership document signed in November XX, 2005.

In July 2010, the NH died in Oregon. Her death certificate lists Oregon as her place of domicile, and describes her marital status as never married. The claimant then applied for surviving spouse benefits in Oregon. The claimant stated that her marriage was not legally recognized in California. She also said that she and the NH planned to register “with the state as domestic partners,” but did not do so because her daughter, and then the NH, became sick and both died.

DISCUSSION

I. Applicable Law

A. Federal Statute and Regulation

A claimant may be entitled to widow’s insurance benefits if she is the widow of an individual who died fully insured and she and the insured were married for at least nine months immediately prior to the insured’s death.[2] Act § 202(e)(1); 20 C.F.R. § 404.335(a); Program Operations Manual System (POMS) RS 00207.001A.1.b.1. A claimant can establish that she is the widow of an insured individual if the courts of the State where the insured was domiciled when she died would find that the claimant and insured were validly married. If the claimant was not validly married, we must examine if the claimant has the same status as a widow with respect to taking the insured individual’s personal property through State intestacy laws. Act § 216(h)(1)(A); 20 C.F.R. §§ 404.335(a), 404.345; POMS GN 00305.001A.2.a; POMS RS 00207.001A.1.a.1.

Thus, if there is no valid marriage, but the claimant alleges a non-marital legal relationship (NMLR), such as a domestic partnership or civil union, as the basis for entitlement, the agency may deem the claimant and NH married if: (1) the NMLR is valid in the State where it was established; and (2) the State of the NH’s domicile recognizes the NMLR as equivalent to a marriage, or because under State intestacy law, the parties to the NMLR can inherit a spouse’s share of the of each others personal property, should one party die. Act § 216(h)(1)(A); 20 C.F.R. § 404.345; cf. POMS GN 00210.004A; POMS GN 00305.005 (determining marital status).

B. Oregon Law

In May 2014, the United States District Court for the District of Oregon declared unconstitutional Oregon’s previous ban on in-state same-sex marriages and non-recognition of out-of-state same-sex marriages. Geiger v. Kitzhaber, 994 F. Supp. 2d 1128 (D. Or. 2014). Thus, as of the date of the court’s order, Oregon began issuing same-sex marriage licenses and recognizing out-of-state same-sex marriages.[3]

In 2007, the Oregon State Legislature enacted the Oregon Family Fairness Act,allowing same-sex couples to enter into registered domestic partnerships effective February 4, 2008. See 2007 Oregon Laws Ch. 99 (H.B. 2007), §§ 1-9 (codified at Or. Rev. Stat. §§ 106.300-106.340). These domestic partnerships “extend benefits, protections and responsibilities to committed same-sex partners and their children that are comparable to those provided to married individuals and their children by the laws of this state.” Or. Rev. Stat. § 106.305(5); see also Or. Rev. Stat. § 106.340. As a result, Oregon domestic partnerships convey spousal inheritance rights. Or. Rev. Stat. § 106.340; see also POMS GN 00210.004.D. Thus, if an Oregon domestic partnership meets the criteria in Or. Rev. Stat. § 106.325, the agency can find the registered domestic partnership qualifies as marital relationships for SSA benefits purposes. POMS GN 00210.004D.

To enter into a registered domestic partnership under Oregon law, individuals must file a Declaration of Domestic Partnership on which each individual shall: (1) state that she or he is at least 18 years old and capable of entering into a domestic partnership; (2) state whether the individual resides in Oregon; (3) provide a mailing address; (4) state that she or he consents to the jurisdiction of Oregon courts for any proceeding related to the partners’ rights and obligations; and (5) indicate the individual’s name after domestic partnership. Or. Rev. Stat. § 106.325. Both partners must sign and notarize the declaration. Id

C. California Law

Historically, same-sex marriage first became legal in California on June 16, 2008, when the California Supreme Court held that a State law barring same-sex marriages was contrary to the State Constitution. See In re Marriage Cases, 43 Cal. 4th 757 (Cal. 2008). However, same-sex marriages were again barred beginning November 5, 2008, after the passage of Proposition 8, a State constitutional amendment. See Strauss v. Horton, 46 Cal. 4th 364, 397-98 (Cal. 2009). On August 4, 2010, the United States District Court for the Northern District of California held that Proposition 8 was unconstitutional. See Perry v. Schwarzenegger, 704 F. Supp.2d 921, 1004 (N.D. Cal. 2010). The United States Court of Appeals for the Ninth Circuit imposed a stay pending appeal, and later affirmed the district court’s decision. See Perry v. Brown, 671 F.3d 1052, 1096 (9th Cir. 2012); Perry v. Schwarzenegger, 2010 WL 3212786 (9th Cir. Aug. 16, 2010). On June 26, 2013, the United States Court of Appeals for the Ninth Circuit lifted its stay. See Perry v. Brown, 725 F.3d 968 (9th Cir. 2013).

California also has various requirements that must be met before a marriage is valid under State law. Cal. Fam. Code §§ 300 et seq. In part, the parties must obtain a marriage license from a county clerk, consent and solemnize the marriage as provided by law, and register the license with the country recorder.[4] Cal. Fam. Code §§ 300(a)-(b). A marriage license issued by a county clerk does not become a marriage certificate until it is registered with the county recorder. Id. at § 300(b).

II. Analysis

A. Oregon Would not Recognize an Invalid California Marriage

When considering whether two individuals were spouses for the entitlement to survivor benefits, the agency looks to the laws of the State where the insured individual was domiciled when he or she died. Because the NH was domiciled in Oregon at the time of her death, we apply Oregon law to determine if she and the claimant were spouses. 20 C.F.R. § 404.335(a) (referencing 20 C.F.R. § 404.345).

Oregon recognizes any marriage that is valid in the State it was entered into. Garret, 449 P.2d at 858. The claimant and the NH participated in a ceremonial marriage in California in 2001, seven years before same-sex marriage first became legal in California. See In re Marriage Cases, 53 Cal. 4th 757 (Cal. 2008). On June 26, 2015, the United States Supreme Court held that all 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. Pursuant to Harper v. Va. Dep’t 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 considers state-law same-sex-marriage bans, whether based on state constitutional or statutory provisions or on case law, void and ineffective. See POMS GN 00210.002A (stating the agency will recognize a valid same-sex marriage as of the date of the marriage, including during periods when the number holder’s state of domicile did not recognize same-sex marriages).

Therefore, while we cannot consider a state’s ban on same-sex marriage as invalidating a marriage, we still must consider whether a marriage that occurred prior to the date same-sex marriage became legal in California otherwise satisfies the criteria for a valid California marriage, and thus could be recognized by Oregon.

In California, a marriage is valid only if the parties obtain a marriage license from a county clerk, consent and solemnize the marriage as provided by law, and register the license with the county recorder. Cal. Fam. Code §§ 300(a)-(b). A marriage license issued by a county clerk does not become a marriage certificate until it is registered with the county recorder. Id. at § 300(b). Here, the claimant and the NH consented and had a ceremony in Santa Rosa, California; received a document that purports to be a “marriage certificate” (herein after “souvenir certificate”) from the officiant of their ceremony (Reverend ~R G), and later notarized the souvenir certificate in Sonoma County, California.[5] As Santa Rosa is located in Sonoma County, there must be evidence that a marriage license was obtained from a Sonoma county clerk and registered with the county recorder, at the time of their marriage. Although the souvenir certificate was notarized in Sonoma County, California, on November X, 2014, there is no evidence that a license was obtained from a county clerk or registered.[6] Thus, the marriage is not valid under California law and therefore the courts of Oregon would not recognize it as valid under Oregon law.

B. Oregon Public Employee Benefit Board Affidavit of Domestic Partnership

Because the claimant and NH did not enter into a valid marriage, we must examine whether the Oregon PEBB Affidavit of Domestic Partnership, signed by the Claimant and the NH, established a registered domestic partnership under Oregon law for basis of entitlement to social security benefits. An Oregon domestic partnership that meets the criteria in Or. Rev. Stat. § 106.325 qualifies as equivalent to a marital relationships under Oregon law and thus for SSA benefits purposes. POMS GN 00210.004D

To enter into a domestic partnership under Or. Rev. Stat. § 106.325,[7] individuals must file a Declaration of Domestic Partnership on which each individual shall:

a) state that she or he is at least 18 years old and capable of entering into a domestic partnership;

b) state whether the individual resides in Oregon;

c) provide a mailing address;

d) state that she or he consents to the jurisdiction of Oregon courts for any proceeding related to the partners’ rights and obligations;

e) indicate the individual’s name after domestic partnership;

f) sign the form with a declaration that representations made on the form are true, correct and contain no material omissions of fact to the best knowledge and belief of the individual; and

g) have a notary public acknowledge the individual’s signature.

Here, the Oregon PEBB domestic partnership document provided by the claimant does not comply with all of the criteria for a Declaration of Domestic Partnership required by Or. Rev. Stat. § 106.325. In particular, it does not appear to be on the requisite form required by the Oregon Health Authority pursuant to Or. Rev. Stat. § 106.320. Instead, it is on an Oregon PEBB form.[8]

We have found no case law stating that an Oregon PEBB domestic partnership is equivalent to a domestic partnership formed pursuant to Or. Rev. Stat. § 106.325. With respect to the criteria in Or. Rev. Stat. §106.325(1), and (2), a document of Domestic Partnership must be filed with a county clerk and registered. Once registered, the county clerk will return a copy of the registered form and a Certificate of Registered Domestic Partnership to the partners. The document claimant provided does not appear to have been filed or registered with a county clerk. In addition, the requirements in Or. Rev. Stat. §106.325(3) and (4,) contemplate a formal dissolution of the domestic partnership, with the consent of the court. The document the claimant supplied the agency merely requires a statement of termination of the domestic partnership with “payroll” or their “personal representative.” Finally, the signatures are not notarized, as required by Or. Rev. Stat. § 106.325(5)(g). Thus, although claimant and NH had a domestic partnership for PEBB purposes, it does not meet the criteria of a registered domestic partnership under Oregon domestic partnership law at Or. Rev. Stat. §106.325. Therefore, the claimant cannot inherit as NH’s spouse under Oregon and thus SSA find a deemed marriage for purposes widow’s benefits.

CONCLUSION

The claimant is not the NH’s widow based on the marriage ceremony held in California prior to the State’s legal recognition of same-sex marriages. In addition, neither California nor Washington permit common law marriage, so the claimant cannot be considered the NH’s widow, based on a same-sex common law marriage. Further, we believe the courts of Oregon would find that claimant cannot inherit as NH’s widower under Oregon law based on the Oregon PEBB Domestic Partnership document as it is not equivalent to a registered domestic partnership under Oregon domestic partnership law at Or. Rev. Stat. §106.325. Thus, the agency cannot find a deemed marriage based on the PEBB Domestic Partnership. Accordingly, we believe the agency is justified in finding that claimant is not NH’s widower or deemed widower under Title II and therefore Claimant is not entitled to WIB on NH’s earnings record.

Footnotes:

[1] You did not ask whether claimant could be deemed the widow of the NH based on their Oregon PEBB Affidavit of Domestic Partnership document. However, we will also address this issue.

[2] In addition to establishing that she is the widower of the insured, the claimant must establish he meets the other criteria for entitlement to widower’s benefits. See 20 C.F.R. § 404.335. You have not asked, and we have not analyzed, whether the claimant meets these other requirements.

[3] Oregon does not permit common-law marriages. In Re Hanlon, 557 B.R. 801, 806 (U.S. Bankr. Ct., D. Or. 2016) (citing Huard v. McTeigh, 232 P. 658, 663 (Or. 1925); Johnston v. Georgia– Pac. Corp., 581 P.2d 108, 109 (Or. App. 1978)). Therefore. we will not address whether claimant and NH entered into a common law marriage in Oregon.

[4] California does not permit common law marriage. Burkes v. Apfel, 233 F.3d 1220, 1225 (10th Cir. 2000) (citing Tatum v. Tatum, 241 F.2d 401 (9th Cir.1957)). Therefore, we will not address whether claimant and NH entered into a common law marriage in California.

[5] Pursuant to POMS GN 00301.050 Evaluating the Validity of Documents and Records, souvenir certificates may “[l]ack of a state or county seal or certification” and “are not acceptable as preferred evidence of… marriage.”

[6] As previously explained, infra, California did not permit same-sex marriage at this time. However, the couple could have entered into a California domestic partnership. Beginning January 2000, California permitted any two same-sex individuals to enter a registered domestic partnership if (1) neither person had an ongoing marriage or domestic partnership with someone else; (2) the individuals were not related by blood; (3) both individuals were at least 18 years of age; and (4) both individuals were capable of consenting to the domestic partnership. Cal. Fam. Code § 297(b); see POMS GN 00210.004(D)(5). Registered domestic partners in California have the same rights, protections, benefits, responsibilities, obligations, and duties “as are granted to and imposed upon spouses.” Cal. Fam. Code § 297.5(a). An individual in a registered domestic partnership has a right to inherit intestate from the other partner the same as a surviving spouse. Cal. Fam. Code § 297.5(c). California’s domestic partnership requirements and benefits, which are comprehensive, are substantially similar to Oregon’s. Compare Or. Rev. Stat. §§ 106.315 & 106.340, and Cal Fam. Code § 297.5. Therefore, Oregon would recognize a validly formed California domestic partnership for inheritance purposes.

[7] In addition to these criteria, individuals are precluded from entering a domestic partnership when: (1) either party had another partner or spouse living at the time of the domestic partnership; (2) the parties were first cousins or any nearer kin to each other; or (3) either party was incapable of consenting to the contract for want of age or understanding. Or. Rev. Stat. §106.315. Here, it appears that the claimant and the NH were not precluded from entering a domestic partnership for any of these reasons.

[8] The website for the Oregon PEBB (which contracts for and administers health benefits for eligible state employees), contemplates that a registered domestic partnership under State law differs from one “by affidavit.” According to the PEBB website: Our benefit program accommodates two types of domestic partnership: by affidavit and by registered certificate. 1. Domestic partnership by affidavit is established between two individuals of same or opposite sex when they attest on a PEBB affidavit to the relationship as described in our Summary Plan Description. 2. Domestic partnership by registered certificate is established between two individuals of the same sex by Oregon Revised Statute. https://www.oregon.gov/oha/pebb/Benefits/domestic-partners.pdf (last visited on March 31, 2020). Thus it appears that a domestic partnership for purposes of Oregon PEBB is different from a domestic partnership under the Oregon domestic relationship law at Or. Rev. Stat. § 106.325.

The number holder (NH) was domiciled in California at the time of death; therefore, we apply the California law to determine whether the Claimant and the NH had a valid marriage. Under the California law, a marriage entered into in another State is considered valid in California if that marriage was valid under the laws of the State in which the couple married. The Claimant and the NH entered into a ceremonial civil marriage in Nevada in 1976 and provided proof of marriage. Accordingly, the State of California would recognize the Claimant’s marriage to the NH as a valid marriage. Because the Claimant satisfies all other requirements for widow’s benefits, we believe the agency can find that the Claimant is entitled to benefits on the NH’s record.

Question:

You asked whether claimant W~ (Claimant) is the surviving spouse of number holder L~ (NH) for purposes of determining entitlement to widow’s benefits.

Short Answer:

Yes, the Claimant is the NH’s surviving spouse because her marriage to the NH was valid under Nevada law and would be recognized as a valid marriage in California. Because the Claimant satisfies all other requirements for widow’s benefits, we believe the agency could find that she is entitled to benefits on the NH’s record provided that the agency confirms that the Claimant and the NH did not divorce.

Background:

The Claimant alleged that she and the NH entered into a ceremonial civil marriage in Nevada on July XX, 1976. The Claimant provided a certified copy of a Marriage License issued by C~ County, Nevada, and signed by the County Clerk. She also provided a certified copy of a Marriage Certificate signed by a minister and recorded in the Book of Marriages, C~ County, Nevada, on July XX, 1976. Although Nevada did not recognize same-sex marriages in 1976, the Claimant stated that the couple was able to marry because they presented as an opposite-sex couple.

The couple separated in 1988^[1] but apparently did not divorce. The NH was domiciled in California at the time of her death in 2005. Her death certificate indicates that she was “never married” and no spouse is listed.

The claimant, who was born in 1950, filed a claim for widow’s benefits on the NH’s record on August XX, 2013.

Legal Standards:

1. Federal Law

To be entitled to survivor’s benefits under Title II of the Social Security Act (Act), a claimant must establish that she is the widow of an individual who died fully insured^[2] . See Social Security Act § 202(e), 216(c)(1); 20 C.F.R. § 404.335. Under Section 216(h) of the Act, the agency will find a claimant is the widow of an insured individual if the courts of the State in which the insured resided at the time of her death would find that the claimant was validly married to the insured at the time she died. Social Security Act § 216(h)(1)(A)(i).

In addition to establishing that she is the insured’s widow as set forth above, to receive surviving spouse benefits, the claimant must show she is not married; she is at least age 60 (or aged 50 and disabled); and her relationship with the insured lasted for at least nine months immediately before the insured died (or the relationship meets one of the alternatives to the nine month duration requirement). See Social Security Act § 202(e); 20 C.F.R. § 404.335.

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.

 

2. Nevada Law

To be validly married in Nevada, a couple must obtain a marriage license from a county clerk. Nev. Rev. Stat. § 122.040. After receiving a marriage license, a couple solemnizes their marriage and obtains a marriage certificate from the person who performed the marriage, which must be recorded with the county recorder. Nev. Rev. Stat. §§ 122.080, 122.120, 122.130. For marriages entered into after January 1, 1971, a marriage certificate and a marriage license certified by the county clerk constitute presumptive evidence of marriage. See Nev. Rev. Stat. § 122.030. Research shows that the requirements in effect in 1976, when the Claimant married the NH, were substantively similar.^[3]

Historically, Nevada laws have prohibited same-sex marriage. See Nev. Const. art.1, § 21; Nev. Rev. Stat. § 122.020. On October 7, 2014, the United States Court of Appeals for the Ninth Circuit ruled that laws in Nevada and Idaho that prohibited same-sex marriages were invalid. Latta v. Otter, 771 F.3d 456, 464-65 (9th Cir. 2014). In so ruling, the Court also reversed a decision of the United States District Court for the District of Nevada, in Sevcik v. Sandoval, which had upheld Nevada’s ban on same-sex marriage. Id. at 476-77; Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012). Effective October 9, 2014, Nevada no longer enforces constitutional, statutory, or regulatory prohibitions against same-sex marriages. Sevcik v. Sandoval, No. 2:12-cv-00578 (D. Nev. Oct. 9, 2014) (order).

3. California Law

California recognizes all marriages that were validly entered into in other States, including same-sex marriages. Cal. Fam. Code § 308.

1. 1. 

   The Claimant Was the NH’s Surviving Spouse

   • •

     Because the NH was domiciled in California at the time of death, we apply California law to determine whether the Claimant was validly married to the NH. See Social Security Act § 216(h)(1)(A)(i).

   • •

     Under California law, a marriage entered into in another State is considered valid in California if that marriage was valid under the laws of the State in which the couple married. Cal. Fam. Code § 308. The State of Nevada, where the Claimant and NH married, did not permit same-sex marriage in 1976 when the couple married. See Nev. Rev. Stat. § 122.020 (1973) (providing that a male and a female “may be joined in marriage”). However, pursuant to Obergefell, the agency considers Nevada’s prohibition on same-sex marriages to be void and ineffective, regardless of when the marriage took place. See Obergefell, 135 S. Ct. at 2607-08. Therefore, in determining whether the Claimant is the NH’s surviving spouse, the agency considers whether all requirements for a valid marriage in Nevada were satisfied.

To be validly married in Nevada, a couple must obtain a marriage license from a county clerk. Nev. Rev. Stat. § 122.040. Here, the Claimant submitted a certified copy of a Marriage License that was issued in C~ County, Nevada, and signed by the C~ County Clerk. Although Nevada did not recognize same-sex marriages in 1976, the couple was able to marry because they presented as an opposite-sex couple. Although the County Clerk incorrectly believed that they were an opposite-sex couple, it does not appear that the Claimant and NH lied under oath to obtain their marriage license. Applicants for a marriage license must “provide proof of the applicant’s name and age,” Nev. Rev. Stat. § 122.040(2), and “answer under oath each of the questions contained in the form of license” Nev. Rev. Stat. § 122.040(3). The marriage license is a pre-printed form with places for information concerning the “bride” and “groom,” but it does not require applicants to identify their gender. Nev. Rev. Stat. 122.050. Thus, it does not appear that the couple lied under oath in order to obtain a marriage license^[4] .

• •

  A couple also must obtain and record a marriage certificate to be validly married in Nevada. The Claimant submitted a certified copy of a Marriage Certificate that was signed by a minister and recorded in the Book of Marriages, C~ County, Nevada. The couple’s Marriage Certificate is substantially similar to the model marriage certificate provided in section 122.120 of the Nevada Revised Statutes. See Nev. Rev. Stat. 122.120(2). The Marriage Certificate does not use the terms “bride” and “groom”.

• •

  Having satisfied these requirements, the agency would be justified in finding that the Claimant and the NH entered into a valid marriage under Nevada law. See Nev. Rev. Stat. § 122.030(2) (a marriage certificate and marriage license certified by the county clerk constitute presumptive evidence of marriage). Accordingly, the State of California would recognize the Claimant’s marriage to the NH as a valid marriage. See Cal. Fam. Code § 308. The agency could therefore find that the Claimant is the NH’s surviving spouse. See Social Security Act § 202(e), 216(c)(1) & (h)(1)(A)(i); 20 C.F.R. § 404.335.

1. 2. 

   The Claimant Satisfies the Other Requirements for Surviving Spouse Benefits

In addition to establishing that she is the NH’s surviving spouse, the Claimant must show she is not married; she is at least age 60 (or aged 50 and disabled); and her relationship with the NH lasted for at least nine months immediately before the NH’s death (or she meets one of the alternatives to the nine month duration requirement). See Social Security Act § 202(e); 20 C.F.R. § 404.335. These requirements are satisfied here. Accordingly, the agency could find that the Claimant satisfies these requirements to be eligible for surviving spouse benefits on the NH’s record. See Social Security Act § 202(e); 20 C.F.R. § 404.335.

The agency will find that a same-sex marriage is valid, even if same-sex marriage was not permitted under State laws in effect when the marriage occurred, so long as the marriage satisfies all other elements necessary for a valid marriage. See Obergefell, 135 S. Ct. at 2607-08. Here, the agency must disregard Nevada’s prohibition on same-sex marriages when the marriage occurred. For the reasons discussed above, the agency would be justified in finding that the Claimant’s marriage to the NH was otherwise valid under Nevada law. Because the marriage was validly entered into in Nevada, the State of California, where the NH was domiciled when she died, would also find the marriage to be valid. Therefore, the agency could find that the Claimant is the NH’s surviving spouse under the Act. Because the Claimant satisfies all other requirements for widow’s benefits, we believe the agency can find that she is entitled to benefits on the NH’s record, provided that the agency confirms the couple did not divorce prior to the NH’s death.

The number holder (NH) and the Claimant were married in Spain in October 2005. The NH was domiciled in California when the Claimant applied for benefits; therefore, we consider whether their Spanish marriage is valid under the California law. Effective October 26, 2005, Spanish citizens could legally marry non-Spanish nationals of the same sex regardless of whether that person’s country of origin permitted same-sex marriage. Under California law, a marriage that was valid in the jurisdiction in which it was entered into is also valid in California. Because the marriage between Claimant and NH was valid under Spanish law, California would also recognize it as valid. As such, we believe the Agency could find the marriage is valid under the Act for purposes of determining Claimant’s entitlement to spousal benefits.

QUESTION

You asked whether claimant A~ (Claimant) and number holder J~ (NH), who were married in Spain and are now domiciled in California, are validly married for the purpose of determining Claimant’s entitlement to spouse’s benefits.

SHORT ANSWER

Yes. Because California would recognize Claimant’s marriage to NH as valid, we believe the agency may rely on the marriage to find Claimant entitled to spouse’s benefits under the Social Security Act (Act).

SUMMARY OF EVIDENCE

The NH, a United States citizen, applied for and was granted retirement benefits effective February 1997. The NH married the Claimant, a Spanish national, in Spain on October XX, 2005. As proof of their marriage, the Claimant provided a certified copy of their marriage certificate from the Civil Registry of Z~.^[5] From October 2005 until July 2014, the Claimant and NH lived for half of the year in Spain and half of the year in the United States. The Claimant and NH have been domiciled in California since July 2014, when the Claimant received permanent resident status. On November XX, 2016, the Claimant filed for spouse’s benefits on the NH’s account.

APPLICABLE LAW

Federal Law

An applicant is entitled to benefits as a spouse under Title II of the Act if, among other things, he is the spouse of an insured individual who is entitled to old-age or disability benefits.^[6] See 42 U.S.C. §§ 402(c), 416(a)(1); 20 C.F.R. § 404.330. The applicant must demonstrate that he is in a valid marital relationship with the insured such that he the insured’s spouse. See 20 C.F.R §§ 404.345, 404.704, 404.723, 404.725. To determine whether the applicant is the insured individual’s spouse, the agency looks to the law of the State where the insured is domiciled. Social Security Act § 216(h)(1)(A)(i); see also 20 C.F.R. § 404.345; Program Operations Manual System (POMS) RS 00202.001 (“A legal spouse must be validly married to the number holder under the laws of the State of the number holder’s domicile at the time the claimant files an application; or have the same rights as a husband or wife to share in the distribution of the NH’s intestate personal property under the laws of the State of the NH’s domicile at the time of filing.”).

California Law

The California Family Code provides that “[a] marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in California.” Cal. Fam. Code § 308; see Rosales v. Battle, 113 Cal. App. 4th 1178, 1183 (Cal. App. Ct. 2003) (applying the marriage laws of Mexico to determine the validity of a foreign marriage pursuant to California Family Code § 308).

Spanish Law

On July 2, 2005, Spain amended its Civil Code to permit civil marriages between individuals of the same sex. See Graciela Rodriguez-Ferrand, Report for the Social Security Administration: Spain: Same-Sex Marriage, LL File No. 2014-010727 (May 2014) (citing Código Civil art. 44 (B.O.E. July 25, 1889, as amended)) (Law Library of Congress Report); POMS PR 05830.342 Spain (PR 15-084, addressing validity of Spanish same-sex marriage under District of Columbia law when the number holder was domiciled in Spain). The marriage has full legal effect when it is recorded in the civil registry; at that time, the officer of the civil registry issues a marriage certificate stating the date, time, and place of the marriage.^[7] See Law Library of Congress Report (citing Código Civil arts. 49, 51).

Prior to October 26, 2005, Spanish citizens could only legally marry non-Spanish nationals of the same sex if the non-Spanish national was from a country where same-sex marriage was legal. See Resolución 26 de octubre 2005 de la Dirección General de Registros y Notariado. On October 26, 2005, the Spanish General Directorate of Registries and Notaries issued a resolution providing that a Spanish citizen may marry a non-Spanish national of the same sex regardless of whether that person’s country of origin permits same-sex marriage. Id. This resolution became effective of the date of its issuance, i.e., October 26, 2005, because it did not provide for a different effective date.^[8]

ANALYSIS

Because the Claimant and NH were domiciled in California when the Claimant applied for benefits, we consider whether their Spanish marriage is valid under California law. Under California law, a marriage that was valid in the jurisdiction in which it was entered into is also valid in California. Cal. Fam. Code § 308.

Here, the NH and Claimant entered into a same-sex marriage in Spain on October XX, 2005, as evidenced by their marriage certificate from the Civil Registry of Z~. Código Civil arts. 49, 51 (marriage has full legal effect when it is recorded in the civil registry; at that time, the officer of the civil registry issues a marriage certificate stating the date, time, and place of the marriage). Effective October 26, 2005, Spanish citizens could legally marry non-Spanish nationals of the same sex regardless of whether that person’s country of origin permitted same-sex marriage. See Resolución 26 de octubre 2005 de la Dirección General de Registros y Notariado. Therefore, the marriage between the NH and Claimant was valid under Spanish law.^[9] As such, their marriage is also valid in California because “[a] marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in California.” Cal. Fam. Code § 308.

CONCLUSION

Because the marriage between Claimant and NH was valid under Spanish law, California would also recognize it as valid. As such, we believe the Agency could find the marriage is valid under the Act for purposes of determining Claimant’s entitlement to spousal benefits.

The number holder (NH) was domiciled in California at the time of death; therefore, we apply California law to determine whether the Claimant was validly married to the NH. California recognizes all marriages that were validly entered into in other States, including same-sex marriages. Based on the evidence the Claimant provided, the Claimant is the NH’s surviving spouse because their marriage was valid under the Colorado law and would be recognized as a valid marriage in California. The agency could therefore find that the Claimant is the NH’s surviving spouse for purposes of the Act. The Claimant is entitled to surviving spouse benefits and the lump sum death payment on the NH’s record.

QUESTION PRESENTED

You asked whether claimant A~ (Claimant) is entitled to surviving spouse benefits and the lump sum death payment on the record of number holder R~ (NH), where the couple entered into a same-sex marriage in Colorado in 1975 and the couple were domiciled in California when the NH died.

SHORT ANSWER

Yes. The Claimant is the NH’s surviving spouse because their marriage was valid under Colorado law and would be recognized as a valid marriage in California. The agency would be justified in finding that the Claimant is entitled to surviving spouse benefits and the lump sum death payment based on the first application he filed.

BACKGROUND

The Claimant alleged that he married the NH in Colorado on April XX, 1975. As evidence of the marriage, the Claimant provided a certified copy of a Marriage License and Marriage Certificate that the Boulder County Clerk issued on April XX, 1975. The Claimant and NH lived in California but traveled to Colorado to get married after learning that the BoulderCounty Clerk was willing to issue marriage licenses to same-sex couples.

The NH died fully insured in California on December XX, 2012. The Claimant filed a claim for surviving spouse’s benefits and the lump sum death payment on the NH’s record on December XX, 2014. The agency denied the claim on February XX, 2015 because the Claimant did not “meet the marriage requirement.” The Claimant did not appeal.

In January 2016, the Claimant received a widower’s green card after the United States Citizenship and Immigration Services reopened a 1975 green card petition that the NH had submitted for the Claimant, an Australian citizen.

The Claimant filed a new application for surviving spouse benefits on May XX, 2016.

LEGAL STANDARDS

1. Federal Law

To be entitled to survivor’s benefits under Title II of the Social Security Act (Act), a claimant must establish that he is the surviving spouse of an individual who died fully insured. See Social Security Act § 202(e), 216(c)(1); 20 C.F.R. § 404.335. Under Section 216(h) of the Act, the agency will find a claimant is the surviving spouse of an insured individual if the courts of the State in which the insured resided at the time of death would find that the claimant was validly married to the insured when he died. Social Security Act § 216(h)(1)(A)(i).

In addition to establishing that he is the insured’s surviving spouse as set forth above, to receive surviving spouse benefits, the claimant must show he is not married; he is at least age 60 (or age 50 and disabled); and his relationship with the insured lasted for at least nine months immediately before the insured died (or the relationship meets one of the alternatives to the nine month duration requirement). See Social Security Act § 202(e); 20 C.F.R. § 404.335.

The Act also provides for a lump-sum death payment (LSDP) to the surviving spouse of an individual who died fully insured. Social Security Act § 202(i); 20 C.F.R. § 404.390; Program Operations Manual System (POMS) RS 00210.001. In addition to establishing he is the insured’s surviving spouse, to receive the LSDP, the claimant also must have been living in the same household as the insured at the time of death and the claimant must apply for the LSDP within two years after the insured’s death. Social Security Act § 202(i); 20 C.F.R. §§ 404.390, 404.391; 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.

2. Colorado Law

To be validly married in Colorado, a couple must first obtain a marriage license and marriage certificate from a county clerk. Colo. Rev. Stat. §§ 14-2-105, 14-2-106. After receiving a marriage license, a couple solemnizes their marriage. Colo. Rev. Stat. § 14-2-109. The officiant (or the parties to the marriage, if they self-solemnize) completes the marriage certificate and submits it to the county clerk and recorder for registration. Colo. Rev. Stat. § 14-2-109. A marriage is considered valid in Colorado if it is licensed, solemnized, and registered. Colo. Rev. Stat. § 14-2-104.

Historically, in 2000, the Colorado legislature amended the Uniform Marriage Act to provide that a marriage was valid only if it was between a man and a woman. See Col. Rev. Stat. § 14-2-104(1) (as amended by Laws 2000, Ch. 233, § 1, eff. May 26, 2000). Additionally, any marriage that was not between a man and a woman would “not be recognized as valid” in Colorado. See Col. Rev. Stat. § 14-2-104(2) (as amended by Laws 2000, Ch. 233, § 1, eff. May 26, 2000). Colorado voters subsequently voted to amend the State constitution in a similar manner. See Colorado Const., art. II, § 31 (providing that marriage is between a man and a woman) (added by Amendment 43, Nov. 7, 2006, eff. Dec. 31, 2006).

In July 2014, the Federal District Court for the District of Colorado enjoined the State from enforcing laws banning same-sex couples from marrying. See Burns v. Hickenlooper, No. 14-cv-01817-RM-KLM, 2014 WL 5312541, at *1-*2 (D. Colo. Oct. 17, 2014). Colorado appealed to the Tenth Circuit, which was already considering a similar case from Utah. See Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014). In Kitchen, the Tenth Circuit affirmed a lower court’s ruling that Utah laws barring same-sex marriage were unconstitutional. See id. at 1229-30. The Supreme Court denied review in Kitchen in October 2014, allowing the Tenth Circuit’s decision to stand. See Herbert v. Kitchen, 135 S. Ct. 265 (2014). Thereafter, in October 2014, the District of Colorado permanently enjoined enforcement of Colorado laws prohibiting same-sex marriage. Burns, 2014 WL 5312541, at *1.

3. California Law

California recognizes all marriages that were validly entered into in other States, including same-sex marriages. Cal. Fam. Code § 308.

ANALYSIS

1. The Claimant Is the NH’s Surviving Spouse

Because the NH was domiciled in California at the time of death, we apply California law to determine whether the Claimant was validly married to the NH. See Social Security Act § 216(h)(1)(A)(i).

A marriage entered into in another State is considered valid under California law if that marriage was valid under the laws of the State in which the couple married. Cal. Fam. Code § 308. The Claimant and NH married in Colorado, which banned same-sex marriage in 2000 and deemed any marriage that was not between a man and a woman to be invalid. See Col. Rev. Stat. § 14-2-104 (as amended by Laws 2000, Ch. 233, § 1, eff. May 26, 2000). However, pursuant to Obergefell, the agency considers Colorado’s prohibition on same-sex marriages to be ineffective, regardless of when the marriage took place. See Obergefell, 135 S. Ct. at 2607-08. Instead, in determining whether the Claimant is the NH’s surviving spouse, the agency considers whether all requirements for a valid marriage in Colorado were satisfied.

To be validly married in Colorado, a couple must obtain a marriage license and marriage certificate from a county clerk. Colo. Rev. Stat. §§ 14-2-105, 14-2-106. Here, the Claimant submitted a certified copy of a Marriage License and Marriage Certificate that the Boulder County Clerk issued on April XX, 1975.

The couple must also solemnize their marriage, and their marriage documentation must be registered with the County Clerk. Colo. Rev. Stat. § 14-2-109. The Claimant’s Marriage License and Marriage Certificate shows that a minister solemnized the marriage on April XX, 1975, and the County Clerk registered the marriage on that same date.

The Marriage License and Marriage Certificate that the Claimant provided satisfy Colorado’s requirements for a valid marriage. See Colo. Rev. Stat. § 14-2-104 (marriage is valid if it is licensed, solemnized, and registered). Because the Claimant and the NH entered into a valid marriage under Colorado law, the State of California would also recognize their marriage as valid. See Cal. Fam. Code § 308. The agency could therefore find that the Claimant is the NH’s surviving spouse. See Social Security Act § 202(e), 216(c)(1) & (h)1)(A)(i); 20 C.F.R. § 404.335.

2. The Agency Could Find that the Claimant Satisfies the Other Requirements for Surviving Spouse Benefits and the LSDP

To receive surviving spouse benefits, the Claimant must also show that he is not married; he is at least age 60 (or age 50 and disabled); and his relationship with the NH lasted for at least nine months immediately before the NH’s death (or he meets one of the alternatives to the nine month duration requirement). See Social Security Act § 202(e); 20 C.F.R. § 404.335. These requirements are satisfied here and the agency would be legally justified in finding that the Claimant is eligible for surviving spouse benefits on the NH’s record. See Social Security Act § 202(e); 20 C.F.R. § 404.335.

To receive the LSDP, a surviving spouse must have been living in the same household as the insured at the time of death and he must apply for the LSDP within two years after the insured’s death. Social Security Act § 202(i); 20 C.F.R. §§ 404.390, 404.391; POMS RS 00210.001. Here, the Claimant was living with the NH when he died and the Claimant initially applied for the LSDP on December XX, 2014, within two years of the NH’s death on December XX, 2012. The Claimant’s initial application was therefore timely. See POMS RS 00210.005.B.5 (claimant must apply no later than the second anniversary of the insured’s death). However, the agency found the Claimant was not married to the NH and denied the application, and the Claimant did not appeal. The Claimant filed a new application on May XX, 2016, which was outside the time period to apply for the LSDP. See 20 C.F.R. § 404.391.

In denying the Claimant’s initial claim, the agency found that he did not “meet the marriage requirement.” Because it appears this determination was based on application of marriage laws later found to be unconstitutional, the agency may reopen its prior denial of the Claimant’s December XX, 2014 Title application if the following criteria are met:

1) we made our determination or decision by applying a Federal or State law that the Supreme Court of the United States later determines to be unconstitutional;

2) we find that the application of that law was material to our determination or decision; and

3) we reopen and revise the determination or decision within the following time frames:

For claims under title II of the Social Security Act (Act), within four years of the notice of the initial determination, for good cause, under 20 CFR 404.988(b), 404.989(a)(3);

For claims under title II of the Act, at any time, if the determination or decision was fully or partially unfavorable, under 20 CFR 404.988(c)(8); SSR 17-1p, see, also, POMS GN 00210.030 (same). Here, we believe the agency can find that these criteria are met.

After reopening its prior determination on the Claimant’s initial application pursuant to SSR 17-1p, the agency may find that the Claimant satisfies the requirements to receive the LSDP: he is the NH’s surviving spouse, he was living in the same household as the NH when he died, and he applied for the LSDP within two years after the NH’s death. See Social Security Act § 202(i); 20 C.F.R. §§ 404.390, 404.391; POMS RS 00210.001. If the agency makes those findings, the Claimant would be entitled to both LSDP and surviving spouse benefits based on the December XX, 2014 application.

CONCLUSION

The agency will not apply unconstitutional State laws prohibiting same-sex marriage. Therefore, if a same-sex marriage satisfies all other elements necessary for a valid marriage at the time the marriage occurred, the agency will recognize the marriage.

The Claimant’s marriage to the NH was valid under Colorado law. Because the marriage was validly entered into in Colorado, the State of California, where the NH was domiciled when he died, would also find the marriage to be valid. The agency could therefore find that the Claimant is the NH’s surviving spouse for purposes of the Act.

The agency could also find that the Claimant is entitled to surviving spouse benefits and the LSDP based on his December XX, 2014 application.

The number holder (NH) was domiciled in California at the time of his death; therefore, we look to the California Intestacy laws to determine if the claimant is entitled to the Lump Sum Death Payment (LSDP) on the NH’s record. The Claimant provided a certified copy of a License and Certificate of Marriage as proof of his marriage to the NH in California in November 2008. The document satisfies the California Family Code’s requirements for obtaining a marriage license, solemnizing the marriage, and registering the license with the county recorder. Therefore, the agency considers the Claimant the NH’s surviving spouse. As the NH’s surviving spouse who was living in the same household with the NH at the time of his death, the Claimant is also entitled to receive any underpayment on the NH’s record. The Claimant qualifies for the lump-sum death payment and the underpayment on the NH’s record.

QUESTION

You asked whether claimant K~ (Claimant) is entitled to the lump-sum death payment and an underpayment on the record of number holder J~ (NH), where the couple entered into a same-sex marriage in California on November XX, 2008, while Proposition 8 was in effect.

SHORT ANSWER

Yes. The Claimant is the NH’s surviving spouse because the agency considers their marriage was valid under California law. The Claimant qualifies for the lump-sum death payment and the underpayment on the NH’s record.

SUMMARY OF EVIDENCE

The Claimant alleged that he married the NH in California, on November XX, 2008. He provided a certified copy of a License and Certificate of Marriage issued by the County Clerk Recorder as evidence of their marriage.

The couple lived in California.^[10] After the NH became sick, he and the Claimant traveled to Arizona in mid-2013 for rehabilitative therapy. According to the Claimant, they rented a place in Arizona while the NH received treatment, but the NH remained under the care of his California physicians, returned to California regularly, and remained in contact with his California employer. In addition, the NH’s State disability records and voter registration, among other records, identified California as his home, and he intended to reside to California after he got well. Before the NH could complete his treatment, he died on April XX, 2014 in Arizona.^[11]

On May XX, 2014, the Claimant filed for the lump-sum death payment on the NH’s record. He also requested the underpayment of $14,709.00 on the NH’s record.^[12] An administrative law judge issued a recommended decision and sent it to the Appeals Council for consideration. The decision is pending with the Appeals Council.

LEGAL STANDARDS

A. Federal Law

The Social Security Act (Act) provides for a lump-sum death payment (LSDP) to the surviving spouse of an individual who died fully insured. Social Security Act § 202(i); 20 C.F.R.

§ 404.390; Program Operations Manual System (POMS) RS 00210.600. The agency will find a claimant to be the surviving spouse of an insured individual if the courts of the State in which the insured was domiciled at the time of death would find that the claimant was validly married to the insured when he died. Social Security Act § 216(h)(1)(A)(i). In addition to establishing he is the insured’s surviving spouse, to receive the LSDP, the claimant also must have been living in the same household as the insured at the time of death, and the claimant must apply for the LSDP within two years after the insured’s death. Social Security Act § 202(i); 20 C.F.R. §§ 404.390, 404.391; POMS RS 00210.600.

If the agency has not paid an insured individual the full amount due to him, the agency will remit the underpayment to the insured. Social Security Act § 204(a)(1)(B). However, if the insured dies before the agency pays the underpayment, the agency will distribute the underpayment to the insured’s surviving spouse, as defined in section 216(h) of the Act, if the surviving spouse was living in the same household as the insured at the time of death. Social Security Act § 204(d)(1); 20 C.F.R. § 404.503(b); POMS GN 02301.075(B).

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.

B. California Law

To be validly married in California, a couple must first obtain a marriage license from a county clerk. Cal. Fam. Code §§ 350-360. After receiving a marriage license, a couple solemnizes their marriage before an officiant, who then completes the marriage license and returns it to the county recorder for registration.^[13] Cal. Fam. Code §§ 359(c)-(d), 420-423; see also Cal. Fam. Code § 300(a) (marriage is a civil contract between two persons which requires consent followed by issuance of a license and solemnization). Research shows that substantively similar requirements were in effect in 2008 when the Claimant married the NH.

Historically, on June 16, 2008, the California Supreme Court held that a State law banning same-sex marriages was unconstitutional. See In re Marriage Cases, 43 Cal. 4th 757 (Cal. 2008). Thereafter, voters passed Proposition 8—an amendment to the State constitution prohibiting same-sex marriage—which took effect on November 5, 2008. See Strauss v. Horton, 46 Cal.4th 364, 397-98 (Cal. 2009). On August 4, 2010, the United States District Court for the Northern District of California held that Proposition 8 was unconstitutional. Perry v. Schwarzenegger,

704 F. Supp. 2d 921, 1004 (N.D. Cal. 2010). The United States Court of Appeals for the Ninth Circuit imposed a stay pending resolution of the appeal, and later held that Proposition 8 was unconstitutional. See Perry v. Brown, 671 F.3d 1052, 1096 (9th Cir. 2012); Perry v. Schwarzenegger, 2010 WL 3212786 (9th Cir. Aug. 16, 2010). On June 26, 2013, the United States Supreme Court held that the proponents of Proposition 8 did not have standing to appeal. See Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). Same-sex marriages in California resumed on June 26, 2013, when the Ninth Circuit lifted its stay. See Perry v. Brown, 725 F.3d 968 (9th Cir. 2013).

ANALYSIS

1. The Claimant Is the NH’s Surviving Spouse

In California, Proposition 8 purported to amend the State constitution to ban same-sex marriage effective November XX, 2008, the date the Claimant married the NH. However, pursuant to Obergefell, the agency considers State law prohibitions on same-sex marriage to be void and ineffective, regardless of when the marriage took place. See Obergefell, 135 S. Ct. 2584. Therefore, in determining whether the Claimant is the NH’s surviving spouse, the agency considers whether all requirements for a valid marriage in California were satisfied.

The Claimant provided a certified copy of a License and Certificate of Marriage evidencing his marriage to the NH on November XX, 2008, in California. On its face, the document satisfies the California Family Code’s requirements for obtaining a marriage license, solemnizing the marriage, and registering the license with the county recorder. Cal. Fam. Code §§ 350-360, 359(c)-(d), 420-423. The Claimant’s marriage to the NH is therefore valid under California law and the agency considers him the NH’s surviving spouse. See Social Security Act § 216(h)(1)(A)(i).

2. The Claimant Satisfies the Other Requirements to Receive the LSDP and the Underpayment on the NH’s record

The Claimant is the NH’s surviving spouse, was living with the NH at the time of his death, and he applied for the LSDP one month after the NH died. According to the ALJ’s recommended decision, the NH died fully insured. Therefore, the Claimant satisfies the requirements for receiving the LSDP. See Social Security Act § 202(i); 20 C.F.R. §§ 404.390, 404.391; POMS RS 00210.600.

As the NH’s surviving spouse who was living in the same household with the NH at the time of his death, the Claimant is also entitled to receive any underpayment on the NH’s record. See Social Security Act § 204(d)(1); 20 C.F.R. § 404.503(b); POMS GN 02301.075(B).

CONCLUSION

The agency will not apply unconstitutional State laws prohibiting same-sex marriage. Therefore, if a same-sex marriage satisfies all other elements necessary for a valid marriage at the time the marriage occurred, the agency will recognize the marriage. Accordingly, the agency finds Claimant’s marriage to the NH was valid under California law.

California does not recognize the validity of same-sex marriage certificates issued by the City and County of San Francisco between February and March 2004.

QUESTION

You inquired into the validity of same-sex marriage certificates issued by the City and County of San Francisco between February and March 2004.

SHORT ANSWER

California does not recognize the validity of same-sex marriage certificates issued by the City and County of San Francisco between February and March 2004.

BACKGROUND

In 1977, California amended the Family Code to define marriage as between a man and a woman. See Cal. Fam. Code § 300 (defining marriage as “a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary”). Effective March 8, 2000, California voters passed Proposition 22, adding section 308.5 to the California Family Code. See Cal. Fam. Code § 308.5: historical and statutory notes. Section 308.5 provided that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Fam. Code § 308.5.

On February 12, 2004, after receiving prompting from San Francisco Mayor Gavin, the San Francisco county clerk began issuing marriage licenses to same-sex couples. See Lockyer v. City and County of San Francisco , 33 Cal.4th 1055, 1070-71, 95 P.3d 459, 464-65 (Cal. Sup. Ct. 2004). Litigation immediately followed in the San Francisco County Superior Court. Id. at 1071. On February 27, 2004, the California Attorney General filed a writ in the California Supreme Court, requesting an immediate stay of the issuance of same-sex marriage certificates. Id. at 1072. On March 11, 2004, the California Supreme Court issued a stay, ordering San Francisco County and City officials to enforce existing marriage statutes and refrain from issuing same-sex marriage licenses or certificates. Id. at 1073. Thereafter, in an August 12, 2004 decision, the California Supreme Court held that all same-sex marriages authorized, solemnized, or registered by San Francisco City officials between February 12, 2004 and March 11, 2004 were void from their inception and have no legal effect. Id. at 1113, 1117-18. The Court declined to address the constitutional validity of California’s statutory ban on same-sex marriage. Id. at 1121.

As part of its decision, the California Supreme Court ordered the San Francisco County Clerk and County Recorder to notify every same-sex couple who received a marriage certificate between February and March 2004 that their marriages were “void from their inception and a legal nullity.” Id. at 1118-19. Further, the Court directed the County Clerk and Recorder to correct their records to “reflect the invalidity of these marriage licenses and marriages.” Id.

The California Supreme Court confronted the constitutionality of California’s ban against same-sex marriage in 2008. See In re Marriage Cases, 43 Cal.4th 757, 183 P.3d 384 (Cal. Sup. Ct. 2008). The Court held that Family Code sections 300 and 308.5, prohibiting same-sex marriage, were unconstitutional. Id. at 764-65, 857 (deciding that the proper remedy was to extend the designation of marriage to same-sex couples). In a concurring opinion, Justice Kennard noted the Court’s decision not to revisit the validity of the 4,000 same-sex marriage certificates San Francisco issued in 2004 and the continuing effect of the L~ decision. Id. at 858-59 (“the parties have not asked this court to again address that issue here, and this court has not done so” and therefore “those marriage ceremonies, performed with great joy and celebration, must remain ‘empty and meaningless ... in the eyes of the law’”).

After the California Supreme Court’s ruling in In re Marriage Cases, California counties began issuing same-sex marriage certificates on June 17, 2008. See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 928 (N.D. Cal. 2010). These same-sex marriage certificates were issued until November 5, 2008, the effective date of Proposition 8. Id. Proposition 8 amended the California Constitution, adding a provision that “[o]nly marriage between a Man and a Woman is valid and recognized in California.” See Cal. Const., Art. 1, § 7.5. In Strauss v. Horton, the California Supreme Court held that Proposition 8’s ban on same-sex marriage did not apply retroactively to invalidate an estimated 18,000 same-sex marriages entered into between June 17, 2008 and November 5, 2008. Strauss v. Horton, 46 Cal.4th 364, 474, 207 P.3d 48, 122 (Cal. 2009); see also Program Operations Manual System (POMS) RM 10212.035.A.1 (accepting marriage documents issued to same-sex couples for purposes of a name change if the marriage took place between June 17, 2008 and November 4, 2008). The Court did not discuss the validity of the 4,000 same-sex marriage certificates San Francisco issued in 2004. Id.

After S~, the issue of the constitutionality of Proposition 8 was still outstanding. However, on February 7, 2012, the Ninth Circuit held that the people of California violated the Equal Protection Clause by “using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so,” and that Proposition 8 was unconstitutional. Perry v. Brown, 671 F.3d 1052, 1096 (9th Cir. 2012). On June 26, 2013, the United States Supreme Court held that the proponents of Proposition 8 did not have standing to appeal, upholding the district court’s order declaring the proposition unconstitutional. See Hollingsworth v. Perry, 133 S.Ct. 2652 (2013). On June 28, 2013, the Ninth Circuit dissolved its stay in Perry, “effective immediately.” Perry v. Brown, 725 F.3d 968 (9th Cir. 2013). California Staockyerte officials construed the lifting of the stay as an indication that same-sex marriage in California was legal and permitted. See Ruling by the U.S. Supreme Court Regarding Same-Sex Marriages, Cal. Dept. of Pub. Health (June 28, 2013) (State Registrar’s Message to County Clerks), available at http://gov.ca.gov/docs/DPH_Letter.pdf (“same-sex marriage is again legal in California. Effective immediately, county clerks shall issue marriage licenses to same-sex couples in California”) (emphasis in original). The foregoing Federal Court decisions did not address the validity of California marriage certificates issued to same-sex couples in 2004.

Current public information provided by the City and County of San Francisco indicates that the 2004 marriages remain invalid and those couples must remarry, if desired:

Q. Does the US Supreme Court’s decision on Prop 8 reinstate my 2004 San Francisco Same Sex marriage?

A. 2004 San Francisco Same Sex marriages were voided by the Court and are not valid. The US Supreme Court's decision on Prop. 8 does not reinstate those voided 2004 same sex marriages. Same sex couples are welcome to marry in San Francisco Marriage license and/or marriage ceremony appointment(s) and payment of current fees will be required.

City & County of San Francisco, Office of the Clerk, Frequently Asked Questions re: Marriage Licenses and Certificates, available at http://www.sfgov2.org/index.aspx?page=96 (last visited June 3, 2014).

ANALYSIS

Pursuant to the California Supreme Court’s ruling in L~, the more than approximately 4,000 same-sex marriages performed in the City and County of San Francisco between February 12 and March 11, 2004 were void from their inception. L~, 33 Cal. 4th at 1117. These marriages violated the law in effect at the time; namely, California Family code sections 300 and 308.5, which prohibited marriage between same-sex couples. See id. at 1071, 1075. Although the California Supreme Court eventually held that Family Code sections 300 and 308.5 were unconstitutional, the Court’s holding was not retroactive; the Court chose not to overturn its decision in L~ and validate the same-sex marriages performed in 2004. See In re Marriage Cases, 43 Cal.4th at 858-59. Accordingly, all same-sex marriage certificates issued in 2004 by the City and County of San Francisco were void from their inception and have no legal effect. See City & County of San Francisco, Office of the Clerk, Frequently Asked Questions re: Marriage Licenses and Certificates, available at http://www.sfgov2.org/index.aspx?page=96 (last visited June 3, 2014).

CONCLUSION

California same-sex marriage certificates issued by the County and City of San Francisco from February 12 to March 11, 2004 are void and without legal effect. In considering these documents, the agency should apply its existing rules for void marriage. See POMS GN 00305.125 (Void Marriages).