TN 8 (02-18)

A. PR 16-011 Validity of Same-sex Civil Partnership Performed in England for Entitlement to Husband’s Insurance Benefits – Florida

Date: October 22, 2015

1. Syllabus

The number holder (NH) and the claimant entered into a same-sex civil partnership June 2008 in L~, England. The NH currently receives retirement benefits and on June 2015, the claimant filed for spouse’s benefits on the NH’s earnings record while living in Florida. We look to Florida intestacy law to determine whether the English partnership between the claimant and the NH would permit the claimant to inherit a spouse’s share of the NH’s intestate property.

In Florida, the general rule is that the law of the jurisdiction in which a marriage was entered determines the validity of the marriage. In this case, the claimant and NH provided a certificate of civil partnership issued in England in June 2008. England began recognizing civil partnerships as of December 5, 2005. Entering into a civil partnership creates the same legal relationship between partners as a marriage between a husband and wife but with the different terminology of “civil partners.” Moreover, if a civil partner dies intestate, the same rules apply to the surviving civil partner as would apply in marriage to a surviving spouse. Therefore, we determined the claimant is validly married to the NH under Florida law for purposes of determining entitlement to spouse’s 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 civil partnership in England, 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 determining Claimant’s entitlement to Title II benefits as NH’s spouse.

BACKGROUND

According to the information provided, B~ (Claimant) and A~ (NH) entered into a civil partnership on June XX, 2008, in L~, England. Both Claimant and NH are male. NH currently receives old-age insurance benefits. On June XX, 2015, Claimant applied for Husband’s Insurance Benefits (HIB) on NH’s earnings record. Claimant and NH lived in Florida when Claimant filed his HIB application.

DISCUSSION

A claimant may be eligible for HIB if he is the husband of an individual entitled to old-age insurance benefits. See Social Security Act (Act) § 202(c)(1); 20 C.F.R. § 404.330(a) (2015).¹ A claimant may qualify as the husband 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 is domiciled at the time of the claimant’s application. See Act § 216(f), (h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345. NH lived in Florida when Claimant applied for HIB on NH’s earnings record. Claimant and NH entered into a civil partnership, not a marriage, under English law. Therefore, we look to Florida intestacy law to determine whether the English civil partnership between Claimant and NH would permit Claimant to inherit a spouse’s share of NH’s intestate property.

Under Florida intestacy law, a surviving spouse is entitled to a share of the decedent’s estate. See Fla. Stat. Ann. § 732.102 (West 2015). Florida courts typically base the determination of whether an individual is a surviving spouse on the validity of the marriage. See, e.g., In re Estate of Perez, 470 So. 2d 48, 50 (Fla. Dist. Ct. App. 1985) (reviewing validity of marriage to determine lawful spouse in intestate matter); In re Kant’s Estate, 265 So. 2d 524, 526 (Fla. Dist. Ct. App. 1972) (same). We found no Florida case law specifically addressing whether a member of an English civil partnership can inherit as a spouse under Florida intestacy law.

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 Program Operations Manual System (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. --, 135 S. Ct. 2584, 2604-05 (2015). The Court State invalid to the extent that they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Id. at 2605. The Court also reasoned that having required all States to allow same-sex couples to marry, “[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 2607-08.

However, questions remain whether Florida would recognize an English civil partnership as a marriage. See POMS GN 00210.004(A). In Florida, the general rule is that the law of the jurisdiction in which a marriage was entered determines the validity of a marriage. Anderson v. Anderson, 577 So. 2d 658, 660 (Fla. Dist. Ct. App. 1991). For example, although Florida does not provide for common law marriages, it recognizes out-of-State common law marriages if such marriages are sanctioned in the State in which they were formed. See, e.g., Smith v. Anderson, 821 So. 2d 323, 325 (Fla. Dist. Ct. App. 2002) (citing Anderson, 577 So. 2d at 660).

Florida courts also have examined relationships from other jurisdictions that are not marriages to determine whether Florida, nevertheless, would recognize the relationship as a marriage. A Florida appellate court has held Florida would recognize such a relationship as a marriage if the relationship is a legal union between one man and one woman as husband and wife. See American Airlines, Inc. v. Mejia, 766 So. 2d 305, 307 (Fla. Ct. App. 2000).² In American Airlines, the court evaluated whether a Colombian Unión Marital de Hecho (“Unión”) was a marriage for Florida purposes in a wrongful death suit. Id. at 308-09. The court’s analysis compared the rights and responsibilities in the institution of marriage with those of the Unión under Colombian law. Id. The court found that the Unión was not a marriage due to legal differences between the two types of relationship, such as the fact that a Unión terminates upon the marriage of one party to another person and the parties to the Unión have no rights of inheritance. Id.

In this case, Claimant and NH provided a certificate of civil partnership issued in England in June 2008.³ England began recognizing same-sex civil partnerships as of December 5, 2005, under the Civil Partnership Act 2004. See Letter from Clare Feikert-Ahalt, Senior Foreign Law Specialist, Law Library of Cong. Global Legal Research Ctr., to Karen Aviles, Office of the Gen. Counsel, Soc. Sec. Admin, 1, (Aug. 2014) (attached). Entering into a civil partnership creates the same legal relationship between partners as a marriage between a husband and wife, but with the different terminology of “civil partners.” See id. Moreover, under the Civil Partnership Act 2004, if a civil partner dies intestate, the same rules apply to the surviving civil partner as would apply in marriage to a surviving spouse. See id. at 3.⁴

Because English law mandates the same treatment for same-sex civil partners and members of civil marriages, the analysis of American Airlines applied to an English civil partnership suggests Florida could recognize the English civil partnership as a marriage. In American Airlines, the court made it clear that whether a Florida court will treat a relationship as a marriage depends on the law in the jurisdiction in which the relationship was entered. Under the analysis of American Airlines, that evaluation should focus on whether the non-marriage relationship results in treating the parties the same as if they were married. Here, based on guidance from the Law Library of Congress Global Legal Research Center, we conclude England’s laws require that parties to civil partnerships be treated the same as those to a marriage. This suggests that Florida courts could find an English civil partnership results in the partners being treated as having entered a legal union between spouses. Therefore, we conclude that Florida courts could find that parties to an English civil partnership are married. 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:

(1) all legal rights for civil partners are the same as those for married spouses so Florida courts could find the relationship created in an English civil partnership is a marriage,

(2) Florida now recognizes same-sex marriages from other States, and

(3) Florida should recognize such marriages from foreign countries, we conclude Florida courts could find Claimant and NH are validly married.

Despite the above analysis, we caution that neither the Supreme Court of Florida nor any of the Florida District Courts of Appeal have spoken on these issues and this area of law in Florida is in significant flux. Consequently, our conclusions may change as Florida law evolves on these issues

We recognize that in the case of a non-marital legal relationship, a claimant may meet the spousal relationship requirement if the claimant can inherit a spouse’s share of the insured’s personal property under the intestate succession laws of the State where the insured individual is living at the time of the claimant’s application. See Act. § 216(h)(1)(A)(ii); 20 C.F.R. §§ 404.330(a), 404.345; POMS GN 00210.004(A), (B)(2). This deemed marriage analysis does not further the decision in this case. In Florida, the right to inherit as a spouse through intestate succession depends on the individual’s relationship to the decedent and the law of the country where the relationship was formed controls the status of the marriage. See In re Estate of Salathe, 703 So. 2d 1167, 1169 (Fla. Dist. Ct. App. 1997). However, the intestate inheritance of property is still controlled by the law where the property is located. See id. Therefore, while English law may determine whether NH and Claimant are married, Florida law would still determine whether and how Claimant could inherit from NH in intestacy. As such, the evaluation still relies on whether Florida would consider Claimant and NH’s civil partnership a marriage and the deeming analysis provides no other avenue to decide this matter.

CONCLUSION

Claimant is validly married to NH under Florida law for purposes of determining Claimant’s entitlement to HIB on NH’s earnings record.

Mary Ann Sloan

Regional Chief Counsel

By: Christopher Yarbrough

Assistant Regional Counsel

Footnotes:

[1]

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

[2]

The language limiting marriage to one man and one woman referenced by the court relied on Fla. Stat. Ann. § 741.212(3).See American Airlines, 766 So. 2d at 307. As discussed in POMS PR 05825.011, Florida courts have ceased to enforce such language as of January 5, 2015 and the Obergefell decision precludes its enforcement as well. See Obergefell, 576 U.S. at --, 2015 WL 2473451, at *19, 23.

[3]

The certificate of civil partnership appears valid on its face and an SSA employee signed a stamp on the photocopy provided asserting that the original appeared to be genuine and unaltered. See Anderson, 577 So. 2d at 660 (“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.”); Guelman v. De Guelman, 453 So. 2d 1159, 1160 (Fla. Dist. Ct. App. 1984) (“It 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.”). Consequently, a Florida court would conclude Claimant and NH had entered into a valid civil partnership.

[4]

We note that, since March 13, 2014, England also allows same-sex couples to enter into a civil marriage, bestowing on them the same rights under the law as heterosexual couples who enter into a marriage. See Letter from Feikert-Ahalt, at 1. Additionally, beginning December 12, 2014, individuals in a same-sex civil partnership had the option to convert their partnership into marriages, thus ending their civil partnership, but this action also converts the effective date of the marriage to the date the civil partnership was formed. Id. at 1-2. However, the law for civil partnerships continues to stand and nothing requires civil partners to change their partnerships into marriages. Id. at 2.