TN 9 (03-18)

A. PR 17-114 California Recognition of Same-Sex Marriage in Mexico City, Mexico for Lump Sum Death Payment

Date: July 10, 2017

1. Syllabus

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

QUESTION

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. Claimant is eligible for the lump-sum death payment based on her marriage to the DWE.

SUMMARY OF EVIDENCE

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.

RELEVANT LAW

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 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.

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

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)).

ANALYSIS¹

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.

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).

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

For the purpose of establishing eligibility to the LSDP, Claimant has established that she was married to the DWE.

Footnotes:

[1]

^. 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).

[2]

^. Law Library of Congress Report, at 1 (citing CÓDIGO CIVIL PARA EL DISTRITO FEDERAL [CIVIL CODE FOR THE FEDERAL DISTRICT], art. 39).

[3]

^. Id. (citing CÓDIGO CIVIL PARA EL DISTRITO FEDERAL [CIVIL CODE FOR THE FEDERAL DISTRICT], art. 39, 50).

[4]

^. 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).

[5]

^. 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.