QUESTION PRESENTED
Whether M~, the claimant, and the J~, the deceased number holder (NH), who were married
in Barcelona, Spain on January 26, 2006, are considered married for purposes of determining
the claimant’s entitlement to benefits under Title II of the Social Security Act (Act).
SHORT ANSWER
Yes, assuming the documents provided to the agency evidence that the marriage was
recorded in the civil registry, the claimant qualifies as the NH’s surviving spouse
(widower). Accordingly, if the claimant also meets the other criteria for entitlement,
the agency should find that he is entitled to Title II benefits on the NH’s record.
BACKGROUND
The claimant and the NH entered into a same-sex marriage on January 26, 2006, in Barcelona,
Spain. The NH died on December 16, 2012 in Barcelona, Spain. The claimant continues
to reside in Spain. On April 11, 2013, the claimant filed for Social Security benefits
and the lump sum payment as the NH’s widower. You requested a legal opinion regarding
whether the claimant and the NH are considered to have been married for purposes of
determining the claimant’s entitlement to benefits under Title II of the Act.
LEGAL STANDARDS
Federal Law
Generally, an individual is entitled to widow’s or widower’s benefits if he or she
(1) is the insured’s widow or widower and the marital relationship lasted at least
nine months before the insured died; (2) files an application; (3) is at least 60
years old; (4) is not entitled to an old-age benefit that is equal to or larger than
the insured person’s primary insurance amount; and (5) is not currently married. Sections
202(e), 202(f) of the Act; 20 C.F.R. § 404.335. Similarly, upon the death of a person
who died as a fully or currently insured individual under the Act, a lump-sum death
payment may be paid to the widow or widower of the insured who was living in the same
household at the time of death. Section 202(i) of the Act; 20 C.F.R. § 404.391.
Here, at the time of the NH’s death, the NH was domiciled in Spain. Therefore, we
apply the laws the District of Columbia courts would apply to determine whether a
valid marriage existed at the time of the NH’s death. See section 216(h)(1)(A)(i) of the Act; 20 C.F.R. § 404.345, POMS GN 00210.066B.2.a. 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. 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). The only exception is when the marriage is in violation
of strong public policy of the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942). As pertinent here, the District of Columbia began
formally recognizing as valid same-sex marriages entered into in other jurisdictions
beginning on July 7, 2009. See Section 1287a of the Jury and Marriage Amendment Act of 2009, D.C. Code § 46-405.01
(“A marriage legally entered into in another jurisdiction between 2 persons of the
same sex that is recognized as valid in that jurisdiction, that is not expressly prohibited
. . . , and has not been deemed illegal . . . , shall be recognized as a marriage
in the District.”). Accordingly, it is clear that from July 7, 2009, the recognition
of same-sex marriages performed in other jurisdictions does not appear to violate
a strong public policy of the District of Columbia. We therefore consider whether
the claimant’s and the NH’s marriage is valid under Spanish law.
Spanish Law
On July 2, 2005, the Civil Code of Spain was amended to include the civil marriage
entered into by individuals of the same sex as a legal marriage. [4] [5] Código Civil art. 44 (B.O.E. July 25, 1889, as amended). Same-sex marriage has the same legal
requirements and effect as heterosexual marriage. Id. Applicants for a marriage license must provide proof that they have lived in Spain
for at least two years (Reglamento de la Ley de Registro Civil (RLRC) art. 240.5),
a current valid passport if the applicant is not a Spanish national (RLRC art. 258),
an original birth certificate (RLRC art. 241), proof of legal capacity to enter into
marriage (RLRC art. 240.3), and any applicable marriage, divorce, annulment, or death
certificates (Ley de 8 de junio de 1957 sobre Registro Civil art. 76 (B.O.E. June
10, 1957, 7537)).
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. Código Civil arts. 49, 51.
DISCUSSION
It is clear that foreign same-sex marriages had been legal in the District of Columbia
since July 7, 2009. Thus, we can conclude that at the time of the NH’s death on December
16, 2012, the District of Columbia would have recognized the marriage between the
claimant and NH as valid, as long as the marriage is valid under Spanish law.
The translation of the documents provided to our office state that the marriage of
the claimant and the NH took place on January 26, 2000. However, the translation provided
does not state when the marriage was recorded in the civil registry. [6] We have no indication that the marriage did not meet the Spanish legal criteria for
a valid marriage. However, under Spanish law, 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. Código Civil arts. 49, 51. Therefore, the agency must confirm that there is evidence that
an officer of the civil registry recorded the marriage in the civil register in order
for the agency to find that the marriage is valid and has full legal effect under
Spanish law.
CONCLUSION
The District of Columbia will recognize a same-sex marriage that occurred in Spain
if the marriage was valid under Spanish law. Here, we have evidence that a marriage
occurred, but it is unclear if we have evidence of when the marriage was recorded
in the civil registry. If the civil registry recordation evidence is shown, the agency
could find the Claimant and NH had a valid marriage under Spanish law at the time
of the NH’s death. If the marriage is valid under Spanish law, the court of the District
of Columbia would also recognize it as valid. As such, the marriage could be recognized
for purposes of determining Claimant’s entitlement to benefits as the NH’s surviving
spouse (widower).