POMS Reference

PR 05820: State Recognition of Foreign Same-Sex Marriages

TN 8 (02-18)

A. PR 14-144 Validity under New York State Law of G~’s Same-Sex Marriage Performed in the Netherlands and his Entitlement to a Lump-Sum Death Benefits on the Record of Number Holder S~.

Date: August 6, 2014

1. Syllabus

New York State recognizes same-sex marriages validly entered into in foreign jurisdictions. The Netherlands has statutorily recognized same-sex marriages since April 1, 2001.

2. Opinion

QUESTION PRESENTED

Is G~ (Claimant), a widower, entitled to a lump-sum death benefit based upon his marriage to S~, the number holder (NH), where the marriage was performed in the Netherlands and the NH resided in New York State when he died?

OPINION

New York State, the domicile of the NH at the time of his death, recognizes same-sex marriages validly entered into in foreign jurisdictions. The Netherlands has statutorily recognized same-sex marriages since April 1, 2001. If the agency determines that the evidence submitted by Claimant demonstrates that Claimant and the NH validly entered into their marriage in the Netherlands on April XX, 2010, New York State would recognize the marriage. The marriage lasted longer than nine months immediately preceding the NH’s death and Claimant lived with the NH when he died. Accordingly, assuming there is sufficient proof of Claimant and the NH’s Netherlands marriage, Claimant would be a widower and would be entitled to a lump-sum death payment on the NH’s record.

BACKGROUND

According to translations of the submitted marriage document, 1 Claimant and the NH were married in A~, the Netherlands, on April XX, 2010. The marriage document was executed by the Mayor of A~, issued by the Office of Civil Registry and Office of the Mayor, and bears the signature of the registrar and what appears to be either the seal or stamp of the Civil Registry. The document lists the United States as the birthplace of both Claimant and the NH.

The NH filed for Social Security Disability benefits on April XX, 2013, listing a residence in New York State. The NH died on June XX, 2013, in L~, New York. Claimant was living with the NH at the time of the NH’s death.

LEGAL FRAMEWORK

A. Social Security Act and Regulations

The widower of an individual who was fully or currently insured upon his or her death, is entitled to a lump sum payment of the smaller of $255 or three times the individual’s primary insurance amount. 42 U.S.C. § 402(i); 20 C.F.R. § 404.390. A widower is the surviving husband of an individual if he was married to the individual for not less than nine months immediately prior to the day on which the individual died. 42 U.S.C. § 416(g)(1). An applicant for a lump sum payment is a widower of an individual who was fully or currently insured upon his or her death, if the courts of the state in which the insured individual was domiciled at the time of death would find that the applicant and insured individual were validly married when the insured died. 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. To qualify for the lump sum payment, the widower must have been living in the same household with the deceased number holder at the time of the number holder’s death. 42 U.S.C. § 402(i); 20 C.F.R. §§ 404.347, 404.390.

B. New York State Law Regarding Same-Sex Marriage

New York State long defined marriage as the voluntary union of one man and one woman as husband and wife. See Hernandez v. Robles, 855 N.E.2d 1, 6, 9-12 (N.Y. 2006) (holding constitutional “New York’s statutory law [that] clearly limits marriage to opposite-sex couples”). Same-sex marriage has only been legal in New York State since the Marriage Equality Act took effect on July 24, 2011, N.Y. Dom. Rel. Law § 10-a (McKinney 2013).

However, New York law recognized same-sex marriages lawfully solemnized outside of the state, including in foreign countries, before the enactment of the Marriage Equality Act. On February 1, 2008, a New York appellate court held that New York would recognize same-sex marriages validly entered into in other jurisdictions, including the July 2004 Ontario, Canada same-sex marriage at issue before the court. Martinez v. County of Monroe, 850 N.Y.S.2d 740, 742 (4th Dept. 2008), leave to appeal denied, 859 N.Y.S. 2d 617, 889 N.E.2d 496 (2008). 2 In 2011, the State of New York, through Attorney General Eric T. S, filed an amicus brief in the District Court for the Southern District of New York, reinforcing its position that, “New York has long recognized as valid same-sex marriages that were solemnized under the laws of other States or nations.” Defendant United States’ Memorandum of Law in Response to Plaintiff’s Motion for Summary Judgment and Intervenor’s Motion to Dismiss, Windsor v. U.S., No. 10-CV-8435, 2011 WL 3754396 (S.D.N.Y. Aug. 19, 2011) (citing Brief for the State of New York as Amicus Curiae in Support of the Plaintiff, ECF 40-1 at 1). In Windsor’s challenge to the constitutionality of the Defense of Marriage Act, the Supreme Court noted, “New York deems [Windsor’s] Ontario marriage to be a valid one.” U.S. v. Windsor, -- U.S. --, 133 S.Ct. 2675, 2683 (2013).

The decision in M considered together with the 2011 amicus brief filed by the State of New York and the Supreme Court’s decision in Windsor, all support the conclusion that New York has recognized same-sex marriages validly entered into in other jurisdictions since at least February 1, 2008.

C. Dutch Law Regarding Same-Sex Marriage

Same-sex marriages have been legal in the Netherlands since the Dutch parliament, on December 21, 2000, amended Book I, Title 5, Article 30 of the country’s Civil Code, effective April 1, 2001. See Act of 21 Dec. 2000 on the Opening of Marriage, Staatsblad 2001, Nr. 9 (amending Burgerlijk Wetboek[Civil Code], Boek 1, Art. 30:1). 3 Pursuant to Article 30 of the Civil Code, a marriage may be entered into by two persons of either a different sex or of the same sex. Burgerlijk Wetboek, Boek 1, Personen- en familierecht [Civil Code Book 1, Family Law and the Law of Persons] (cited hereinafter as Civil Code), available on the official Dutch government website at: http://wetten.overheid.nl/BWBR0002656/geldigheidsdatum_07-04-2014 (last visited on June 18, 2014). 4

ANALYSIS

When the NH died on June XX, 2013, he was domiciled in New York State. He had been married to Claimant since April XX, 2010. There is no evidence to indicate that the marriage was dissolved. Therefore, Claimant was married to the NH for more than nine months immediately before the NH’s death. Claimant also was living with the NH when he died. Accordingly, Claimant is a widower pursuant to 42 U.S.C. § 416(g)(1), provided that New York courts would find that he and the NH were validly married at the time of the NH’s death.

A. New York Would Recognize Claimant and NH’s Dutch Marriage if the Submitted Marriage Document is Acceptable Proof of their Marriage

New York law recognizes that “same-sex couples may legally marry in … the Netherlands.” Godfrey v. Spano, 892 N.Y.S. 2d 272, 275 n.1 (N.Y. 2009); In re Adoption of Sebastion, 879 N.Y.S. 2d 677, 682 (N.Y. Sur. 2009)). Thus, Claimant and the NH’s marriage would be recognized by New York courts if it was validly entered into in the Netherlands.

Same-sex marriage was legalized in the Netherlands on April 1, 2001. See Act of 21 Dec. 2000 on the Opening of Marriage. The submitted marriage document indicates that Claimant and the NH were married in A~, the Netherlands, on April XX, 2010. If this document is acceptable proof of their marriage, Claimant and the NH were validly married under Dutch law and their marriage would therefore be recognized by New York courts.

B. The Marriage Document Submitted with this Request Does Not Definitively Establish Claimant’s Marriage to the NH

The preferred proof of a ceremonial marriage, such as the one between Claimant and the NH, is “[a] copy of (or statement as to) a public record of marriage, certified by the custodian of record.” POMS GN 00305.020(A)(1). Acceptable records for proving the marriage (or birth, death, or other relevant information) are:

(1) the original record;

(2) an extract record, where the record custodian or SSA certifier takes information from the original record and certifies it for accuracy;

(3) a certified photocopy to which the custodian of record affixes a signature, stamp or seal with a statement attesting to the accuracy of the photocopy; and/or

(4) a true and exact copy prepared by an SSA certifier.

POMS GN 00301.030(A).

SSA will accept a photocopy of the original record or an extract only if the record custodian signs or stamps a statement executed when the document is made or affixes the seal of the record custodian’s office to the document. POMS GN 00301.080. If a claimant submits a document certified by the custodian of record, SSA assumes it is valid if not otherwise questionable. POMS GN 00301.045(B)(1)(a).

The Agency must determine whether the document submitted by Claimant should be accepted as proof of his marriage to the NH. As noted by the various translations, the document is either a marriage certificate or an extract. The document bears a circular seal or stamp translated as “Civil Registry A~,” was signed by the Registrar, and was issued by the Office of Civil Registry and Office of the Mayor of A~ Municipality. POMS GN 00312.280 notes that a claimant seeking to obtain a certified copy of a marriage certificate from the Netherlands for purposes of proving his or her marriage should contact the Civil Registrar’s Office of the Burgomaster of the community in which the marriage occurred. See also POMS GN 00312.001(A) (for general advice to claimants on obtaining certified foreign records). For marriages performed in A~, POMS GN 00312.280 directs claimants to the Civil Registrar’s Office of A~, the very office that signed and stamped or affixed the seal to the document submitted by Claimant. Thus, it is likely that the document is certified by the custodian of record and may be preferred proof of the Claimant’s ceremonial marriage.

A definitive conclusion cannot be reached at this time because, from the copy of the document submitted to OGC, it is not possible to determine whether the circular mark is a seal or a stamp. If the circular mark is a seal, nothing further is required under POMS GN 00301.080 for the document’s accuracy and authenticity to be considered certified by the record custodian; the document would therefore be preferred proof of the Claimant and NH’s marriage under POMS GN 00305.020(A)(1). On the other hand, if the circular mark is a stamp, POMS GN 00301.080 requires a statement to be executed at the time the photocopy is made for the document’s accuracy and authenticity to be considered certified. Here, the stamp does not appear to include a statement executed when the photocopy was produced. The photocopy may be a souvenir certificate, a possibility raised by the Library of Congress’s memorandum to OGC, which is not preferred proof of marriage. POMS GN 00305.020(A). A souvenir certificate can, however, serve as secondary proof of the marriage, which would still prove the marriage as long as the other procedures in POMS GN 00305.025(B)(1) are followed. 5

CONCLUSION

If the Agency determines that the evidence submitted constitutes sufficient proof that the Claimant and NH married in the Netherlands on April XX, 2010, New York courts would recognize their marriage as of that date. It appears that they remained married until the NH died on June XX, 2013, meaning that they were still validly married in New York at the time of the NH’s death. Assuming there is sufficient proof of his Netherlands marriage, Claimant would therefore be a widower and would be entitled to a lump-sum death payment on the record of the NH.


Footnotes:

[1]

Separate translations were provided by International Translation Service of S~ and, upon OGC’s request, the District Manager of the C~ Field Office, an agency translator fluent in Dutch. Additionally, a research memorandum prepared by the Library of Congress at the request of OGC translated parts of the document in order to complete the memo. There were some notable differences in the translations. International Translation Service referred to the document as a marriag e certificate extract, the District Manager described it as marriage certificate, and the Library of Congress concluded that it was probably not a marriage certificate but might be an extract, though the researcher observed that those words do not appear on the document in Dutch. International Translation Service and the District Manager noted that the document was issued by the Office of the Civil Registry and Office of the Mayor of A~; while the Library of Congress memo did not specifically note the issuing agency, it did point out that the document bears a seal stating Civil Registry of A~ and is signed by the Registrar.

[2]

Although not a holding of New York State’s top court, M applies state-wide. See Mountain View Coach Lines, Inc. v. Storms, 476 N.Y.S.2d 918, 919-20 (1984) (“[t]he Appellate Division is a single statewide court divided into departments for administrative convenience.” Stare decisis requires trial courts in one department of the Appellate Division to follow precedents set by the Appellate Division of another department until the Court of Appeals or the Appellate Division of another department pronounces a contrary rule).

[3]

An unofficial English translation of the legislation is available at http://media.leidenuniv.nl/legacy/Translation%20of%20Dutch%20law%20on%20same-sex%20marriage.pdf (last checked June 18, 2014).

[4]

See The Civil Code of the Netherlands [Civil Code] 30 (Hans Warendorf, et al. trans., Alphen aan den Rijn, Kluwer Law International 2009) for an unofficial English translation of the entire Civil Code.

[5]

Those procedures involve the Agency providing as much information as possible concerning the events surrounding the marriage ceremony and obtaining an SSA-795 from the claimant containing descriptions of:

(1) the place where the ceremony was performed;

(2) the person who performed the ceremony;

(3) how the parties went to the place of the marriage;

(4) the weather;

(5) witnesses; and

(6) any other details that can be remembered.

POMS GN 00305.025(B)(1). ---------------