TN 8 (02-18)

A. PR 17-115 Recognition of Same-Sex Marriage in Mexico City, Mexico for Surviving Spouse Benefits

Date: July 10, 2017

1. Syllabus

The deceased wage earner (DWE) was domiciled in Arizona at the time of his death; therefore, we look to the Arizona to determine if the DWE and Claimant were validly married. The DWEand Claimant were married in Mexico City. Under Mexican law, parties must go through a civil ceremony to validate a marriage. The DWE and the Claimant registered their civil marriage and presented a marriage certificate issued by the Mexico City Civil Registry as proof of their marriage. Mexico began recognizing same-sex marriages in March 2010. As federal courts have recognized, the Supreme Court of Mexico ruled that same-sex marriages performed in Mexico City must be recognized nationwide; therefore, Arizona would also recognize their marriage as valid. The Claimant is eligible for widower’s benefits and a lump-sum death payment based on his marriage to the DWE.

2. Opinion

QUESTION

You asked whether, for purposes of establishing entitlement to widower’s benefits and a lump-sum death payment, the claimant J~ (Claimant) was married to deceased wage earner J2~ (the DWE).

SHORT ANSWER

Yes. Claimant is eligible to widower’s benefits and a lump-sum death payment based on his marriage to the DWE.

SUMMARY OF EVIDENCE

Claimant and the DWE were married in Mexico City, Mexico on January XX, 2014. They registered their civil marriage. The DWE died on January XX, 2017. His permanent domicile at the time of his death was Arizona.

RELEVANT LAW

Federal Law

To be entitled to widower’s benefits under Title II of the Social Security Act (Act), a claimant must establish that he is the widower of an individual who died fully insured. See Social Security Act §§ 202(e), 216(c); 20 C.F.R. § 404.335. Under Section 216(h) of the Act, the agency will find a claimant to be the insured’s widower if the courts of the State in which the insured individual resided at the time of his death would find that the claimant was validly married to the insured when the death occurred. Social Security Act § 216(h)(1)(A)(i).

Upon the death of an insured individual, the agency may also make a lump-sum death payment (LSDP) to the insured’s widower if he was living in the same household as the insured at the time of death and applied for the LSDP within two years after the insured’s death. Social Security Act § 202(i); 20 C.F.R. §§ 404.390, 404.391; Program Operations Manual System (POMS) RS 00210.001.

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.

Arizona Law

Arizona recognizes marriages validly conducted in another place unless strong public policy exceptions require otherwise. Arizona Revised Statute (A.R.S.) § 25-112; Donlann v. MacGurn, 203 Ariz. 380, 383, 55 P.3d 74, 77 (Ct. App. 2002). Though Arizona statute states there is a strong public policy prohibiting recognition of a same-sex marriage, A.R.S. § 25-101(c), that statute is unconstitutional. See, e.g., Majors v. Horne, 14 F. Supp. 3d 1313, 1315 (D. Ariz. 2014); Obergefell, 135 S.Ct. at 2604-05.

Mexico City, Mexico Law¹

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 proved 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).

ANALYSIS

Because the DWE and Claimant were married in Mexico City, Mexico, the question is whether their marriage was valid under the laws of Mexico such that Arizona would recognize it as valid.

DWE and Claimant were validly married in Mexico City. They registered their civil marriage and presented a marriage certificate issued by the Mexico City Civil Registry as proof of their marriage. Mexico City has recognized same-sex marriages since 2010. Arizona would thus recognize their marriage as valid. See Obergefell, 135 S. Ct. 2584, 2604-05; see also

POMS PR 05825.004 (March 2015 OGC opinion explaining that Arizona would recognize valid same-sex marriage in Canada).

CONCLUSION

For the purpose of establishing entitlement to widower’s benefits and the LSDP, Claimant has established that he 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).