TN 8 (02-18)

A. PR 15-170 Validity of Belgian Same-sex Marriage for Entitlement to Wife's Insurance Benefits – Florida

Date: July 28, 2015

1. Syllabus

The number holder (NH) and claimant married in B~, Belgium in 2009. Belgium legalized same-sex marriage effective June 1, 2003. The NH lived in Florida when the claimant applied for widow’s insurance benefits (WIB) on the NH’s earnings record. Therefore, we look to Florida law to determine if the claimant and the NH are validly married. Although the Obergefell decision did not specifically address whether States must recognize same-sex marriages performed in other countries, Florida has a history of recognizing valid foreign marriages and Florida courts generally determine the validity of a marriage based on the laws of the place where the marriage occurred. Since the Belgian marriage is valid, the claimant is validly married to the NH under Florida law for purposes of determining entitlement to Title II benefits on the NH’s earnings record.

2. Opinion

QUESTION

You asked whether the number holder (NH) and Claimant, who entered into a same-sex marriage in Belgium, were validly married under Florida law for purposes of determining Claimant's entitlement to Title II benefits as NH's spouse.

OPINION

Claimant is validly married to NH under Florida law for purposes of determining Claimant's entitlement to Title II benefits as NH's spouse.

BACKGROUND

According to the information provided, O~ (Claimant) married D~ (NH), on October XX, 2009, in B~, Belgium. Both Claimant and NH are female. NH currently receives old-age insurance benefits. On October XX, 2014, Claimant applied for wife's insurance benefits (WIB) on NH's earnings record. Claimant and NH lived in Florida when Claimant filed her WIB application.

DISCUSSION

A claimant may be eligible for WIB if she is the wife of an individual entitled to old-age insurance benefits. See Social Security Act (Act) § 202(b)(1); 20 C.F.R. § 404.330(a) (2015).¹ A claimant may qualify as the wife of a living insured individual if the claimant is validly married to the insured individual under the laws of the State where the insured individual was domiciled at the time of the claimant's application. See Act § 216(b), (f), (h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345; see also Program Operations Manual System (POMS) GN 00210.006(B) (stating Regional Chief Counsel opinions regarding validity of foreign same-sex marriages look to laws of the State of the number holder's domicile and must address whether marriage would be recognized as valid by the courts of the State of the number holder's domicile). NH lived in Florida when Claimant applied for WIB on NH's earnings record. Therefore, we look to Florida law to determine if Claimant and NH are validly married.

Florida generally approves of the act of marriage, regardless of where it occurs, and presumes a marriage is valid. See Johnson v. Lincoln Square Properties, Inc., 571 So. 2d 541, 542 (Fla. Dist. Ct. App. 1990); Guelman v. De Guelman, 453 So. 2d 1159, 1160 (Fla. Dist. Ct. App. 1984). In addition, "[i]t is presumed that an official performing a marriage service, whether in a foreign or domestic jurisdiction would not have performed the service if there was any known impediment to the marriage." Guelman, 453 So. 2d at 1160. Furthermore, "all presumptions necessary to make a marriage valid, including the capacity to contract, attach upon proof of a ceremonial marriage and cohabitation by the parties under the belief that they were lawfully married." Anderson v. Anderson, 577 So. 2d 658, 660 (Fla. Dist. Ct. App. 1991).

Florida courts generally determine the validity of a marriage based on the laws of the place where the purported marriage occurred. See Johnson, 571 So. 2d at 542; see also POMS GN 00305.005(B)(1) ("The law of the place where a marriage occurred ordinarily determines the validity of a marriage. If the marriage is valid in that jurisdiction, it is usually held valid in other places.") "The law in Florida on this point is consistent with the general rule recognized in other jurisdictions that the validity of a marriage is to be determined by the law of the jurisdiction where the marriage was entered into." Anderson, 577 So. 2d at 660.

Florida previously denied recognition to same-sex marriages due to statutory and State Constitutional provisions, but began recognizing same-sex marriages on January 5, 2015. See POMS GN 00210.003(A); POMS PR 05825.011. Additionally, on June 26, 2015, the U.S. Supreme Court held that same-sex couples may exercise the fundamental right to marry under the United States Constitution. See Obergefell v. Hodges, 576 U.S. ---, 2015 WL 2473451, at *19 (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. The Court also reasoned that having required all States to marry same-sex couples, "[i]t follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." Id. at *23.

In this case, Claimant and NH provided a copy of a marriage certificate issued in B~, Belgium indicating Claimant and NH married on October XX, 2009. Belgium legalized same-sex marriage effective June 1, 2003. See Letter from Nicolas Boring, Foreign Law Specialist, Law Library of Cong. Global Legal Research Ctr., to Brian C. Huberty, Soc. Sec. Admin. (May 20, 2015) (attached). The marriage certificate on its face (per the translation) and the other information provided indicate the marriage certificate was issued in accordance with Belgian law. See Anderson, 577 So. 2d at 660; Guelman, 453 So. 2d at 1160. Although Obergefell did not specifically address whether States must recognize same-sex marriages performed in other countries, Florida has a history of recognizing valid foreign marriages. See, e.g., Guelman, 453 So. 2d at 1160 (recognizing Bolivian marriage). Thus, because the marriage between Claimant and NH is valid and Florida recognizes valid marriages from foreign jurisdictions, Claimant and NH are validly married under current Florida law.

CONCLUSION

Claimant is validly married to NH under Florida law for purposes of determining Claimant's entitlement to Title II benefits on NH's earnings record.

Mary Ann Sloan

Regional Chief Counsel

By: Brian C. Huberty

Assistant Regional Counsel

Footnotes:

[1]

All references to the Code of Federal Regulations are to the 2015 edition.