TN 8 (02-18)

A. PR 16-031 Validity of Norwegian Same-sex Marriage for Entitlement to Lump-Sum Death Payment and Widower's Insurance Benefits – Florida

Date: November 19, 2015

1. Syllabus

The claimant and the number holder (NH) married in Norway in 2011. Norway has recognized same-sex marriages as of January 1, 2009. The couple was married until the NH’s death in September 2014 in the state of Florida. The NH’s death certificate listed his marital status as never married and identifies the claimant as the informant. However, the claimant provided a marriage certificate issued in Norway and other supporting information indicating the claimant and NH were in fact married. The claimant applied for the lump-sum death payment and widower’s benefits on the NH’s earnings record. In order to determine if the claimant and NH are validly married for benefit purposes, we look to Florida law.

Florida has a history of recognizing valid foreign marriages. The courts generally determine the validity of a marriage based on the laws of the place where the purported marriage occurred. This means, if the marriage is valid in that jurisdiction, it is usually held valid in other places. Based on the evidence and information provided, Florida presumes the claimant’s marriage to the NH is valid under Norwegian law. Therefore, the claimant is also validly married to the NH under Florida law for purposes of determining entitlement to 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 Norway, were validly married under Florida law for purposes of determining Claimant's entitlement to Title II benefits as NH's widower.

OPINION

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

BACKGROUND

According to the information provided, A~ (Claimant) married G~ (NH) in Norway on August XX, 2011. NH's death certificate indicates he was a resident of Florida when he died on September XX, 2014. NH's death certificate lists his marital status as never married and identifies Claimant as the informant. Claimant's Numident indicates he is male, and NH's death certificate and Numident indicates he was male. On November XX, 2014, Claimant applied for the lump-sum death payment and all other insurance benefits for which he was eligible under Title II of the Social Security Act (Act) on NH's earnings record.

DISCUSSION

A claimant may be eligible for the lump-sum death payment if the claimant is the widower of an individual who died fully or currently insured. See Act § 202(i); 20 C.F.R. §§ 404.390, 404.391 (2015).¹ A claimant may be eligible for widower's insurance benefits if the claimant is the widower of an individual who died fully insured. See Act § 202(f)(1); 20 C.F.R. § 404.335(a). A claimant may qualify as the widower of an insured individual if the courts of the State in which the insured individual was domiciled at the time of death would find the claimant and insured individual were validly married when the insured individual died. See Act § 216(h)(1)(A)(i); 20 C.F.R. §§ 404.335(a)(1), 404.345; Program Operations Manual System (POMS) GN 00305.001(A)(2)(a); see also 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's death certificate indicates he was a resident of Florida when he died. Therefore, we look to Florida law to determine if Claimant and NH were 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. ---, 135 S. Ct. 2584, 2604-05 (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. 135 S. Ct. at 2605. 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 2607-08.

In this case, Claimant provided a marriage certificate issued in Norway indicating Claimant and NH married on August XX, 2011. As of January 1, 2009, Norway has recognized same-sex marriage as valid. See Letter from Elin Hofverberg, Foreign Law Research Consultant, Law Library of Cong. Global Legal Research Ctr., to Brian C. H~, Soc. Sec. Admin. (Feb. 4, 2015) (attached). Because the certificate and other information support the conclusion the marriage was valid in N~, Florida would presume the marriage is valid under Norwegian 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).

Obergefell also did not specifically address whether States are required to recognize same-sex marriages where one of the parties died before the Court rendered its decision. However, on September 10, 2015, the Social Security Administration (SSA) issued Emergency Message 15029, "Obergefell Supreme Court Decision – When to Recognize Same-sex Marriages in Title II Survivor and Lump-sum Death Payment (LSDP) Claims - One-Time-Only Instructions" (EM). The EM applies Obergefell and provides that, if a marriage was valid where celebrated in a State or U.S. territory, then SSA will recognize the marriage as valid as of the date of the marriage regardless of whether the number holder died domiciled in a State that recognized same-sex marriage when the number holder died. The EM directs this conclusion when determining whether a claimant is a same-sex spouse for Title II benefit purposes, that is, for determining whether under section 216(h)(1)(A)(i) of the Act and 20 C.F.R. § 404.345 the courts of the State where the number holder died (Florida in this case) would find the claimant and the number holder were married when the number holder died. Consequently, if the marriage between Claimant and NH had occurred in another State in the United States and the marriage was valid in that State, we would conclude that Florida courts would consider the marriage to be valid even if NH had died before Florida began recognizing same-sex marriages.

The EM does not specifically address marriages performed outside the United States and its territories. Nevertheless, Florida courts generally determine the validity of a marriage based on the laws of the place where the purported marriage occurred, regardless of whether the marriage was performed in another State or in another country. See, e.g., Guelman, 453 So. 2d at 1160 (sustaining trial court's interpretation of foreign law and presuming Bolivian marriage valid). Because, under the EM, we would conclude Florida courts would recognize a marriage like that between Claimant and NH if the marriage was validly performed in another State, we conclude a Florida court would find Claimant and NH are married in this case because Florida does not treat marriages performed in other States and marriages performed in other countries differently in ways that would result in a different outcome here.

However, 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.

CONCLUSION

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

Sincerely,

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.