PR 05820.006:
California
Effective Dates: 10/21/2014 - Present- Effective Dates: 03/21/2018 - Present
TN 1 (10-14)- TN 9 (03-18)
- PR 05820.006 California
A. PR 14-163 Validity of Same-Sex Marriage Claimant: Y~ Number Holder: W~- A. PR 17-114 California Recognition of Same-Sex Marriage in Mexico City, Mexico for Lump Sum Death Payment
DATE: September 3, 2014- Date: July 10, 2017
1. SYLLABUS- 1. Syllabus
California will recognize a same-sex marriage that occurred in Spain if the marriage was valid under Spanish law.- The deceased wage earner (DWE) died while domiciled in California; therefore, we look to the California law to determine if the DWE and Claimant had a valid marriage. The Claimant and the DWE were married in Mexico in April 2015. Under the Mexican law, parties must go through a civil ceremony to validate a marriage. The DWE and Claimant registered their civil marriage with the Civil Register in Mexico, and presented a marriage certificate issued by the Mexico Civil Registry as proof of their marriage. As federal courts have recognized, the Supreme Court of Mexico ruled that same-sex marriages performed in Mexico must be recognized nationwide. Mexico began recognizing same-sex marriages effective March 4, 2010. 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 this state. In this case, the California law would recognize that the DWE and the Claimant’s marriage was valid and the Claimant is therefore eligible for the lump sum death payment (LSDP) on the DWE’s account.
2. OPINION- 2. Opinion
QUESTION PRESENTED- QUESTION
You asked whether Claimant and Number Holder (NH), who were married in Gaucin, Spain on August 25, 2008, and are now domiciled in California, are validly married for the purpose of determining Claimant’s entitlement to spouse’s benefits.- You asked whether, for purposes of establishing entitlement to a lump-sum death payment, the claimant D~ (Claimant) was married to deceased wage earner M~ (the DWE).
- SHORT ANSWER
Yes. Because California would recognize Claimant’s marriage to NH as valid, the agency may rely on the marriage for determining entitlement to benefits under the Social Security Act (Act).- Yes. Claimant is eligible for the lump-sum death payment based on her marriage to the DWE.
BACKGROUND- SUMMARY OF EVIDENCE
Y~ (Claimant) and W~ (NH), both male, entered into a ceremonial civil marriage in Gaucin, Spain on August 25, 2008. As proof of marriage, Claimant provided a copy of the marriage certificate from the Civil Registry of Gaucin, dated September 2, 2008. The marriage certificate lists the home of Claimant and NH as Gaucin, Spain.- Claimant and the DWE were married in Mexico City, Mexico on April XX, 2015. They registered their civil marriage. The DWE died on April XX, 2017. Her permanent domicile was W~, California.
On October 28, 2013, Claimant applied for auxiliary spouse’s benefits on NH’s account. The San Francisco – Mission field office indicated that Claimant is now a permanent resident alien residing in San Francisco, California with the NH.LEGAL STANDARDS- RELEVANT LAW
- Federal Law
A claimant may be entitled to benefits as the spouse of an insured person, if certain criteria are met. See Act §§ 202(b), (c); 20 C.F.R. § 404.330. To determine eligibility, the Social Security Act looks to state law to determine whether a spousal relationship existed. 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 NH under the laws of the State of the NH’s domicile at the time the claimant files an application or during the life of the application; or [h]ave 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.”).- 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 is 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 she died. Social Security Act § 216(h)(1)(A)(i). The claimant must also 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.
More specifically, to confirm the validity of a same-sex marriage, the agency must first determine whether the couple entered into a ceremonial marriage after the date the issuing state permitted same-sex marriage. POMS GN 00210.002; see also POMS GN 00210.003 (listing all states that permit same-sex marriage). Where the couple entered into a same-sex marriage in a foreign jurisdiction, the agency looks to the law of the state of the NH’s domicile at the time of application to determine if the courts in that state would recognize the foreign same-sex marriage as valid. POMS GN 00210.006. Thus our inquiry is whether the Spanish marriage between Claimant and NH is valid under California law.- 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.
- California Law
California statutory law does not specifically address the validity of a same-sex marriage contracted in Spain. However, 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 this state.” Cal. Fam. Code § 308 (2014); see also 52 Am. Jur. 2d. Marriage § 65 (2012) (“[t]he general rule is that the validity of a marriage is determined by the law of the place where it is contracted, or celebrated. Thus, a marriage which is valid under the law of the state or country in which it is contracted will generally be recognized as valid.”); Rosales v. Battle, 113 Cal. App. 4th 1178, 1183, 7 Cal. Rptr. 3d 13 (Cal. App. Ct. 2003) (applying the marriage laws of Mexico to determine the validity of a foreign marriage pursuant to California Family Code § 308(a)).- 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 this state.” Cal. Fam. Code § 308; Rosales v. Battle, 113 Cal. App. 4th 1178, 1183, 7 Cal. Rptr. 3d 13 (Cal. App. Ct. 2003) (applying the marriage laws of the State of Baja California, Mexico to determine the validity of a foreign marriage pursuant to California Family Code § 308(a)).
Same-sex marriage became legal in California on June 28, 2013. Perry v. Brown, 725 F.3d 968, 970 (9th Cir. June 28, 2013). In November 2008, California voters passed Proposition 8, which amended the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” 1 2 3 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), 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)).- ANALYSIS1
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.- Because the DWE and Claimant were married in Mexico City, Mexico, the question is whether their marriage was valid under the laws of Mexico City, Mexico, such that California would recognize it as valid.
DISCUSSION- 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 proven with certificates and records kept by the Mexico City Civil Registry.2 A marriage certificate issued by the Mexico City Civil Registry is prima facie evidence that the couple was married before a Civil Registry official.3 Mexico City, Mexico, began recognizing same-sex marriages effective March 4, 2010.4 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).
Because California law recognizes all marriages that are valid in the jurisdiction in which they are contracted, California will recognize the marriage of Claimant and NH if it is valid under Spanish law. The marriage certificate presented by Claimant shows that his marriage to NH took place on August 25, 2008 and the marriage was recorded in the civil registry on September 2, 2008. There is no evidence suggesting that Claimant’s marriage to NH failed to meet the requirements for a valid marriage under Spanish law. Same-sex marriage was legal in Spain at the time of their marriage, and the officer of the civil registry recorded the marriage in the civil register and issued a marriage certificate to Claimant and NH. Therefore, the marriage is valid and has full legal effect under Spanish law.- Claimant and the DWE 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.5 In addition, their same-sex marriage was valid under the law of Mexico City, Mexico. Thus, California would recognize the validity of the marriage. See, e.g., POMS PR 05820.006, PR 14-163 Validity of Same-Sex Marriage, September 3, 2014 (California will recognize a same-sex marriage that occurred in Spain if the marriage was valid under Spanish law). Claimant is therefore eligible for the LSDP on the DWE’s account.
- CONCLUSION
California will recognize a same-sex marriage that occurred in Spain if the marriage was valid under Spanish law. Because the marriage between Claimant and NH was valid under Spanish law, California would also recognize it as valid. As such, the marriage is valid under the Act and for determining Claimant’s entitlement to spousal benefits.- For the purpose of establishing eligibility to the LSDP, Claimant has established that she was married to the DWE.
- Footnotes:
- [1]
Following the passage of Proposition 8, California amended Family Code section 308 to include subsection (b) that provided that a same-sex marriage contracted outside the state, which was valid under the laws of the jurisdiction where it was contracted, would be valid in California if it was contracted prior to November 5, 2008, and subsection (c) that if the out-of-state marriage was contracted after that date, the couple could not use the designation marriage. See Cal. Fam. Code. § 308(b), (c) (2010); 2009 Cal. Legis. Serv. Ch. 625 (S. B. 54) (West). On July 7, 2014, the California legislature repealed California Family Code Section 308, and reinstated it without subsections (b) and (c) that had limited same-sex marriages to those contracted before November 5, 2008. See 2014 Cal. Legis. Serv. Ch. 82 (S.B. 1306) (West) (providing, “The bill would also delete the limitation on the validity of marriages contracted outside this state between 2 persons of the same sex.”).Cal. Const. Art. I, § 7.5; Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 927 (N.D. Cal. 2010). On August 4, 2010, the District Court for the Northern District of California held that Proposition 8 was unconstitutional under both the Due Process and Equal Protection Clauses of the United States Constitution. Id. at 1004. However, the Ninth Circuit granted a stay on August 16, 2010, pending resolution of an appeal. See Perry v. Schwarzenegger, 2010 WL 3212786 (9th Cir. Aug. 16, 2010) (order). Upon review, 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 on this basis. 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, and same-sex marriages in California once again became legal. Perry v. Brown, 725 F.3d 968 (9th Cir. 2013)- . Our discussion of the law of Mexico City, Mexico, is based on information we received from the Law Library of Congress. See Gustavo Guerra, LL File No. 2016-013054 (March 2016) (Law Library of Congress Report).
California state officials construed the lifting of the stay as indication that same-sex marriage in California was legal and permitted and that same-sex couples who were legally married in another jurisdiction would be considered already legally married under California State law. 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- [2]
Therefore, California, currently acknowledges all marriages validly entered into in other states, including same-sex marriages. Cal. Fam. Code § 308 (2014); see also POMS GN 00210.100.- . Law Library of Congress Report, at 1 (citing CÓDIGO CIVIL PARA EL DISTRITO FEDERAL [CIVIL CODE FOR THE FEDERAL DISTRICT], art. 39).
Spanish Law- [3]
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.- . Id. (citing CÓDIGO CIVIL PARA EL DISTRITO FEDERAL [CIVIL CODE FOR THE FEDERAL DISTRICT], art. 39, 50).
[2]- [4]
We obtained an opinion regarding the law Spain as it pertains to same-sex marriage from a Senior Foreign Law Specialist in the Law Library of Congress. The opinion’s discussion of Spanish law is consistent with the analysis in this memorandum.- . Id. (citing CÓDIGO CIVIL PARA EL DISTRITO FEDERAL [CIVIL CODE FOR THE FEDERAL DISTRICT], as amended, Diario Oficial de la Federación, 26 de mayo de 1928, art. 146, available as amended through Mar. 2015 at http://www.poderjudicialdf.gob.mx/work/models/PJDF/Transparencia/IPO/Art14/Fr01/01Leyes/CodigoCivilDF_20151003.pdf; see also https://lasa.international.pitt.edu/forum/files/vol42-issue1/Debates1.pdf).
[3]- [5]
Prior to October 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. Here, Claimant was not a Spanish citizen and lists his nationality as Japanese. However, because Claimant and NH were married in 2008, this rule is not implicated, and it is not necessary to address whether the change in requirements applied retroactively. If the issue of the validity of a same-sex marriage between a Spanish citizen and a non-Spanish national contracted in Spain between July 2, 2005 and October 26, 2005 arises in the future, please refer the issue to OGC for an opinion.- . The field office reported that the marriage certificate looked valid and it referred the matter for an OGC opinion because the couple was a same-sex couple. In addition, the regional office checked relevant POMS provisions and did not detect any problems with the certificate.
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