Quote:
PR 08-058 Entitlement to Widower's Lump Sum Death Payment Where Claimant Underwent Sex Reassignment Surgery After the Marriage - California - Leslie A. M~
DATE: February 4, 2008
1. SYLLABUS
This issue involved in this decision is martial relationship after sex reassignment surgery after the date of the marriage.
2. OPINION
You asked whether Leslie A. M~(the claimant), who was born a male and underwent sex reassignment surgery after marrying Janet L. G~ (the insured), could be considered the insured's spouse for purposes of a widower's lump sum death payment.
EVIDENCE
The claimant was born a male named Ronald L. G~ on September 16, 1946, in Bozeman, Montana.
The claimant married the insured in the State of California, on November 2, 1973.
On September 27, 2000, the claimant obtained a court order from the San Luis Obispo Superior Court changing his name to Leslie A. M~.
The claimant applied for a new Social Security card on September 29, 2000, and the Numident was changed to reflect the new name and a sex designation of female.
On June 12, 2001, the claimant underwent male to female gender reassignment surgery in Portland, Oregon.
The insured died on February 21, 2007 in Tulare, California.
The claimant applied for a lump sum death payment on March 19, 2007. She alleged that she and the insured were still married and lived together at the same address when the insured died. She stated that she had never applied to amend her birth certificate in the State of Montana or elsewhere to reflect her change of sex.
The Bureau of Vital Statistics, Helena, Montana, verified that there has been no request for amendment of birth certificate for Ronald L. G~, male, born September 16, 1946, in Bozeman, Montana.
ANALYSIS
A lump sum death payment (LSDP) is payable to a surviving widow(er) of an individual who is fully or currently insured when (s)he dies, if the spouses were living in the same household at the time of the deceased's death. See Section 202(i) of the Social Security Act; 20 C.F.R. §§ 404.390-.391 (2006). "Living in the same household" is defined as customarily living together as husband and wife in the same residence. See 20 C.F.R. § 404.347; Program Operations Manual System (POMS) RS 00210.035(B)(1)(b). Here, the insured and the claimant lived together in the same residence at the time of the insured's death. The issue remaining is whether they were legally "husband and wife" at the time of the insured's death.
The Social Security Act (the Act) directs the Agency to look to state law in determining family status. See Section 216(h)(1)(A)(i). The Agency will determine whether an applicant is the spouse of an insured by determining "if the courts of the State in which such insured was domiciled at the time of death, . . . would find that such applicant and such insured individual were validly married" at the time of the insured's death. Id. see also 20 C.F.R. §§ 404.344-.346. If the highest court in a state has ruled on the validity of a marriage involving a party who has undergone a sex change, the Agency must follow the state court's holding when adjudicating a claim involving similar facts. The California Supreme Court, the highest court in the domicile state in this case, has not ruled on the validity of a marriage involving a party who has undergone a sex change after the marriage. Accordingly, we look to the relevant state statutes and case law to try and predict how the California courts would rule on this matter.
The claimant and the insured were domiciled in California at the time of the insured's death. In California, "[o]nly a marriage between a man and a woman is valid or recognized." Cal. Fam. Code § 308.5. When the claimant and the insured married each other in 1973, they were a male and female, respectively. Thus, their marriage was clearly a valid marriage recognized under California law at its inception. Id. See Vryonis v. Vryonis, 202 Cal. App.3d 712, 723 (2d Dist. 1988) (a lawful marriage is one which complies with statutory requirements; "lawful" and "valid" are nearly synonymous) (dicta). Once a marriage has been shown to exist, it is presumed to be a legal and valid marriage. See, e.g., Marsh v. Marsh, 79 Cal. App. 560, 569 (3rd Dist. 1926) ("This is a presumption of more than ordinary strength. It is one of the strongest known to law."). We must then consider whether the claimant's actions subsequent to the marriage invalidate or terminate a marriage that was valid at its inception. See POMS GN 00305.005(B)(4)(b).
The claimant's name change had no legal effect on the marriage. The only relevant inquiry is whether the reassignment surgery affects the validity of the marriage. With regard to the claimant's sex change, the Agency follows state law in determining the sex of an individual.
If a state recognizes an individual's ability to undergo a sex change, we must determine whether the individual has taken the appropriate action to obtain state recognition of the change. If the state does not recognize an individual's ability to undergo a sex change, or the individual has not followed the procedure set out by the state for it to recognize a sex change, we will find an individual to be the birth sex. Although both California and Montana have procedures to obtain state recognition of a sex change, the claimant did not avail herself of these procedures. The claimant took no steps after the sex reassignment surgery to obtain a court order to reflect a change of sex from male to female. See Cal. Health and Safety Code §§103425, 103430, 103435 (petition for a change of gender may be filed with the Superior Court). Without a court order reflecting a change of sex, the claimant could not request the birth state, Montana, to amend the birth certificate. The State of Montana recognizes a gender change certified by an order of a court of competent jurisdiction that an individual has undergone a sex change by surgical procedure. See Mont. Code. Ann. §§ 50-15-204(2), Mont. Admin. R. 37.8.106(6). Because the claimant did not follow the procedure set out by California or Montana for these states to recognize a change in sex, the claimant is found to be the sex the claimant was at birth, i.e., male.
Since there is no state recognition of claimant's sex change, the claimant is considered a male, and the marriage between the claimant and the insured would remain a valid marriage between a male and female at the insured's death. Therefore, the claimant has the status of "spouse" for purposes of the lump sum death payment.
This shows that the SSA contradicts itself numerous ways when dealing with trans citizens.