UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF RHODE ISLAND

__________________________________________

DEBORAH TEVYAW,

)

Plaintiff,

)

)

v.

)

)

CAROLYN W. COLVIN, in her official capacity )

as the Acting Commissioner of the Social Security )

Administration,

)

Defendant.

)

__________________________________________)

CIVIL ACTION NO.

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER RELIEF

INTRODUCTION

This case challenges the Social Security Administration’s (SSA) erroneous

interpretation and application of the statutes governing widow’s insurance and lump sum

death benefits to gay and lesbian widow/ers, resulting in the denial of Plaintiff Deborah

(“Deb”) Tevyaw’s application for those benefits. Deb is a Rhode Island resident and was

validly married to her spouse Patricia (“Pat”) Baker until Pat’s death in 2011. Deb later

applied for widow’s insurance and lump sum death benefit based upon Pat’s Social

Security earnings record. Even though Deb meets all of the statutory criteria for such

benefits, the SSA denied her application based upon an erroneous interpretation and

application of relevant law.

 Specifically, SSA is directed by statute to base determinations of family status for

the purpose of awarding spouse-based benefits on an analysis of how “the courts of

the State” in the insured’s state of domicile at the time of application (or if deceased,

at the time of death) would assess the applicant’s spousal status. 42 U.S.C.

§ 416(h)(1)(A). The SSA has wrongly concluded that a gay or lesbian widow/er can only qualify for Social Security survivor benefits under 42 U.S.C. § 416(h)(1)(A)(i), if the courts of the state of domicile would have recognized the applicant as “validly married” under that state’s law, rather than as “validly married” in the state where the marriage was celebrated. A proper construction of § 416(h)(1)(A)(i) only requires that the courts of the state of domicile would find that the couple was “validly married,” which Deb and Pat were when they married in Massachusetts.  Even if, arguendo, SSA’s reading of § 416(h)(1)(A)(i) were correct, it has compounded its errors through Program Operations Manual System (“POMS”) GN 00210.002(C) and GN 00210.003. These POMS establish state-specific dates of recognition for marriages of same-sex couples and several, including that for Rhode Island, are patently wrong. The dates used in the POMS provide that Rhode Island’s courts would not have recognized the marriages of same-sex couples at the time of Pat’s death, despite Rhode Island’s long-standing judicial recognition of out-of-state marriages even when those out-of-state marriages could not be validly entered into in Rhode Island. See Ex Parte Chace, 58 A. 978 (R.I. 1904) (establishing respect for lawfully solemnized out-of-state marriages as valid under principles of interstate comity).  In addition, the SSA fails to recognize that even if Rhode Island’s courts would not have generally recognized marriages of same-sex couples for all purposes at the time of Pat’s death in 2011, Deb would still qualify under subsection (ii) of the statute, which allows someone to be recognized as a widow for purposes of
2

Social Security survivor benefits if the state of residence would accord that person “the same status with respect to the taking of [personal] property” as a widow. Deb meets that standard under Rhode Island intestacy law.  Finally, even if the SSA’s interpretation of § 416(h)(1)(A) and its implementation of the statute by regulation and POMS are correct, the statute, regulations and POMS are unconstitutional as violative of Equal Protection and Due Process.
JURISDICTION AND VENUE 1. This action arises under the Constitution of the United States and the laws of the United States, including 42 U.S.C. § 402. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331, 42 U.S.C. § 405(g), and 28 U.S.C. § 2201. 2. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e), because Plaintiff Deborah Tevyaw resides in this district, and the events giving rise to her claims arose in this district.
PARTIES 3. Plaintiff DEBORAH TEVYAW is a citizen of the State of Rhode Island and the United States of America, and she resides in Warwick, Rhode Island. 4. Defendant CAROLYN W. COLVIN is currently the Acting Commissioner of the Social Security Administration, an independent agency of the United States Government. In her official capacity, she is responsible for the administration and enforcement of the Social Security Act.
FACTS 5. Deborah (“Deb”) Tevyaw is 58 years old and currently resides in Warwick, Rhode Island.
3

6. Deb was in a lifelong, committed relationship with her same-sex partner and spouse, Patricia (“Pat”) Baker.
7. Deb and Pat met in 2002 through friends and began dating a year later. 8. On August 4, 2005, they were validly married in Massachusetts. 9. On August 14, 2011, Pat passed away due to cancer at the age of 55. At the time of Pat’s death, Deb and Pat lived in the same household in Johnston, Rhode Island. 10. Deb is listed as Pat’s spouse on Pat’s death certificate, which was issued by the Rhode Island Department of Health. 11. Pat, a long time corrections officer for Rhode Island, was fully insured by the Social Security program when she died. 12. Following Pat’s death, on December 27, 2011, Deb timely applied for Social Security disabled widow’s insurance benefits and lump sum death payment based upon Pat’s earnings record. 13. Under 42 U.S.C. § 402(i) and 20 C.F.R. §§ 404.390-404.391 and 404.347, a surviving spouse is entitled to a lump-sum death payment of $255 if the surviving spouse was “living in the same household with the deceased at the time of death,” if the surviving spouse applies for the benefit “prior to the expiration of two years after the date of death …,” and if the deceased spouse was “fully or currently insured” at the time of death. 14. Deb meets these requirements for the lump-sum death payment. 15. Under 42 U.S.C. § 402(e), a widow is entitled to insurance benefits equal to the primary insurance amount earned by her deceased spouse if the widow is not
4

married, has attained age 50 but has not attained age 60 and is under a disability, has filed application for widow’s insurance benefits, and is not entitled to old-age insurance benefits or is entitled to old-age insurance benefits each of which is less than the primary insurance amount of the deceased spouse.
16. Deb meets these requirements for widow’s benefits. 17. By letter dated January 17, 2012, the SSA informed Deb that her claim was denied because the SSA had determined that Deb did “not meet the marriage requirement.” The letter further stated: “You can not [sic] get benefits because your marriage does not meet the requirements under Federal law for payment of Social Security spouse’s or widow’s benefits.” 18. Deb timely filed a request for reconsideration on March 6, 2012. 19. By letter dated November 5, 2012, the SSA informed Deb that upon reconsideration, the SSA’s “first decision was correct” because Deb was “not entitled to benefits because you are not the spouse of Patricia Baker under Social Security law.” In the enclosed “Reconsideration Determination (Form SSA-662),” the SSA further explained: “The Defense of Marriage Act (DOMA) and Social Security law preclude the surviving partner of a same-sex marriage or union from qualifying as a surviving spouse or widow(er) regardless of that partner’s status under State law.” 20. Section 3 of DOMA, 1 U.S.C. § 7, provided that: [i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.
5

21. On January 3, 2013, Deb timely appealed the denial of reconsideration and requested a hearing by an administrative law judge. Her request stated that “the reason for the denial of my claim is unconstitutional.”
22. By letter dated April 17, 2013, Deb received notice that her hearing had been scheduled for July 30, 2013.
23. On June 26, 2013, the U.S. Supreme Court held in U.S. v. Windsor, 133 S. Ct. 2675 (2013), that Section 3 of DOMA violated constitutional equal protection guarantees.
24. Following the Windsor decision, the SSA announced that it would hold the processing of all applications for same-sex spousal and survivor benefits pending further guidance from the SSA regarding the implementation of its legal obligations under Windsor.
25. On July 10, 2013, Deb received notice from the SSA that her hearing scheduled on July 30, 2013 had been postponed.
26. After ten months of having her application on hold, on May 14, 2014, Deb received a decision “fully favorable to the claimant” from Administrative Law Judge Barry H. Best, which is attached as Exhibit A. In support of the decision, Judge Best made the following pertinent findings of fact and conclusions of law:
 “The claimant entered into a valid same-sex marriage with the numberholder on August 4, 2005.”
 “The sole basis for finding that the claimant was not eligible for disabled widow’s benefits and a lump sum death payment was the operation of the Defense of Marriage Act…. This Act has been found unconstitutional by Decision of the United States Supreme Court…. On that basis, the threshold impediment to the claimants’ [sic] eligibility for disabled widow’s benefits and the lump sum death payment has been removed.”
6

 “Under Social Security statutes and regulations her marriage to her spouse is recognized as having been as valid as any other marital union.”
 “[D]uring all periods relevant to claims presented in this case, and for all purposes relevant to benefit programs administered by the Social Security Administration, the claimant and the number holder were married, and the claimant was the spouse of the number holder.”
27. On July 11, 2014, Deb received a “Notice of Appeals Council Action”
from the SSA’s Office of Appellate Operations, informing her that the SSA’s Appeals
Council had decided to review Judge Best’s decision in her case, because it “found that
there is an error of law.”
28. As the basis for its decision to review Judge Best’s decision, the Office of
Appellate Operations referred to a memorandum from the Northeastern Program Service
Center dated June 23, 2014 (hereinafter “NPSC memorandum”), which was provided to
Deb.
29. The NPSC memorandum asked that the Office of Appellate Operations
review Judge Best’s decision because it asserted that his determination that Deb met “the
marriage requirement … is incorrect.” It further stated:
The claimant’s marriage ended upon the death of the wage earner on August 14, 2011. Reg. §404.345 requires that SSA look to the laws of the State where the wage earner was domiciled when they died. Since the marriage ended before Rhode Island recognized same-sex marriage it was never a valid marriage under Rhode Island State law. This is consistent with the policy provided in POMS GN 00210.002C Steps 11 and 13 and GN 00210.002D. Example 2.2. [emphasis added]
30. The NPSC memorandum stated that the first date on which “Rhode Island
recognized same-sex marriages from any other state” was May 14, 2012. Accordingly,
the memorandum asked that Judge Best’s decision be reversed and Deb’s application be
denied.
7

31. 20 C.F.R. § 404.345, to which the NPSC memorandum cites, states that to determine whether an applicant qualifies as a widow/er, the SSA will “look to the laws of the State where the insured had a permanent home when he or she died.” It continues: “If you and the insured were validly married under State law … the relationship requirement will be met. The relationship requirement will also be met if under State law you would be able to inherit a wife’s, husband’s, widow’s, or widower’s share of the insured’s personal property if he or she were to die without leaving a will.”
32. 20 C.F.R. § 404.345 is an attempt to implement 42 U.S.C. § 416(h)(1)(A). That statute provides two means by which a person may qualify as a widow/er for survivor benefits. Subsection (i) of § 416(h)(1)(A) states that “[a]n applicant is the … widow … of a fully or currently insured individual … [if] the courts of the State in which he was domiciled at the time of death … would find that such applicant and such insured individual were validly married … at the time he died.” Subsection (ii) states that “[i]f such courts would not find that such applicant and such insured individual were validly married at such time, such applicant shall, nevertheless be deemed to be the … widow… of such insured individual if such applicant would, under the laws applied by such courts in determining the devolution of intestate personal property, have the same status with respect to the taking of such property as a wife, husband, widow, or widower of such insured individual.”
33. In an attempt to implement 42 U.S.C. § 416(h)(1)(A), the SSA has also issued POMS GN 00210.002, which was also cited in the NPSC memorandum.
8

34. POMS, or Program Operations Manual System, are the “[i]nstructions used by employees and agents of SSA to carry out the law, regulations, and rulings” (http://www.ssa.gov/regulations/#a0=3).
35. Step 11 of POMS GN 00210.002, which is attached as Exhibit B, instructs the SSA to ask: “At the time of his or [sic] death, was the deceased NH [Number Holder] domiciled in a state that at that time recognized same-sex marriages from any other state?” If the answer is no, the POMS concludes that “[t]he claimant is not in a marriage that can be recognized for purposes of determining entitlement.”
36. In order to answer the question in Step 11, the POMS references a chart contained in POMS GN 00210.003, which is attached as Exhibit C. That chart describes May 14, 2012 as the first date “same-sex marriages from any other states were recognized” in Rhode Island.
37. The starting date on which any given state would have recognized a marriage of a same-sex couple is not relevant to 42 U.S.C. § 416(h)(1)(A), which asks instead whether the courts of the state of domicile would have found that the couple were “validly married.”
38. Even if the date of recognition were relevant to 42 U.S.C. § 416(h)(1)(A), May 14, 2012 is not the correct starting date on which Rhode Island’s courts would have recognized the marriage of a same-sex couple.
39. Instead, Rhode Island’s courts have long recognized out-of-state marriages under principles of comity, even where the Rhode Island couple could not have married in Rhode Island. See Ex Parte Chace, 58 A. 978 (R.I. 1904) (establishing respect for lawfully solemnized out-of-state marriages as valid under principles of interstate comity).
9

40. The SSA chose May 14, 2012 as the starting date of recognition presumably because that is the date on which Rhode Island Governor Lincoln Chafee issued an executive order instructing executive state departments, agencies, and offices to comply with existing Rhode Island law by recognizing the lawful marriages of same-sex couple. As its basis, the executive order recognizes that “since at least 1904, Rhode Island has recognized marriages validly celebrated in other states and countries under the principle of comity, regardless of whether the couple could have married in Rhode Island” and cites Ex Parte Chace, 58 A. 978 (R.I. 1904). The executive order also cites to a 2007 opinion by the Rhode Island Attorney General stating that “same-sex marriages from other jurisdictions do not violate this state’s public policy and therefore must be recognized under principles of comity and full faith and credit.” A copy of the executive order is attached as Exhibit D.
41. On July 8, 2014, in response to the SSA’s adoption of May 14, 2012 as Rhode Island’s recognition date, Governor Chafee sent separate and identical letters to Defendant Colvin and Stuart F. Delery, Assistant Attorney General for the U.S. Department of Justice, explaining that the May 14, 2012 executive order “did not establish May 14, 2012 as the date upon which Rhode Island would first recognize out of state, same-sex marriages.” Instead, Governor Chafee’s letters stated that the executive order “clarified that Rhode Island courts have recognized marriages validly celebrated in other states since at least 1904.” The letters expressed “concern that the Social Security Administration (SSA) is applying May 14, 2012 as the date of recognition of out of state marriages” and asked that the SSA “review its policy manuals and ensure that any SSA
10

applications that have been affected or denied based upon this misinterpretation be remedied as quickly as possible.”
42. Governor Chafee’s letters also asserted that even if the SSA is unwilling to correct the “date of recognition” for Rhode Island, “a married, same-sex couple would have independently qualified for benefits pursuant to 42 U.S.C. § 416(h)(1)(A)(ii)” because “such applicant would, under the laws applied by such courts in determining the devolution of intestate personal property, have the same status with respect to the taking of such property as a wife, husband, widow, or widower of such insured individual.” A copy of Governor Chafee’s letter to Defendant Colvin is attached as Exhibit E.
43. On July 24, 2014, the entire Rhode Island Congressional delegation signed joint letters to Defendant Colvin and Attorney General Eric Holder to express their agreement and “support of Rhode Island Governor Lincoln Chafee’s letter requesting that the Social Security Administration (SSA) review its policies and procedures with respect to the effective date of Rhode Island’s recognition of out-of-state, same-sex marriages.” A copy of the Rhode Island Congressional delegation’s letter to Acting Commissioner Colvin is attached as Exhibit F.
44. Prior to Governor Chafee’s and the Rhode Island Congressional delegation’s letters, representatives from lesbian, gay, bisexual, and transgender (LGBT) advocacy organizations submitted three memoranda to the SSA and the Department of Justice (DOJ), urging the SSA to adopt the correct interpretation of 42 U.S.C. § 416(h)(1)(A).
45. On August 21, 2013, LGBT advocacy organizations Gay & Lesbian Advocates & Defenders (GLAD) and Lambda Legal submitted a memorandum to the
11

SSA and DOJ. That memorandum asserted that the valid marriage of a same-sex couple should be recognized pursuant to 42 U.S.C. § 416(h)(1)(A), regardless of where the couple resided at the time of death, that SSA should look to the whole law of the state (including comity law) in predicting which marriages state courts would recognize, and that “it would be reasonable for SSA to interpret the statute [to] make eligible for spousebased benefits all validly married same-sex couples” to avoid constitutional problems.
46. On December 16, 2013, GLAD and Lambda Legal submitted a memo to Defendant Colvin. That memorandum asserted that constitutional imperatives applicable to the federal government and statutory construction principles “should result in SSA guidance allowing spousal and survivor benefits for those in marriages valid where celebrated.” In addition, the memorandum urged “SSA to eliminate the ‘recognition’ column from the chart” contained in GN 00210.003, because the “dates in that column of that chart are simply inaccurate,” including the May 14, 2012 recognition date for Rhode Island.
47. On May 14, 2014, GLAD submitted a memorandum to the SSA and DOJ addressing the chart contained in GN 00210.003 and asserted that the “dates for when marriages from other states were first recognized should be earlier than stated in the POMS.” This memorandum specifically addressed the May 14, 2012 recognition date for Rhode Island and argued that such date is “incorrect,” because “[f]or 110 years, Rhode Island has respected marriages as valid when lawfully solemnized out-of-state even when they cannot be certified in-state.”
48. Despite these numerous requests from Rhode Island elected officials and LGBT advocacy organizations beginning as early as August 2013, the SSA has refused to
12

treat as irrelevant under 42 U.S.C. § 416(h)(1)(A) the date it deems any given state to have begun recognizing out-of-state marriages of same-sex couples.
49. Despite these numerous requests from Rhode Island elected officials and LGBT advocacy organizations beginning as early as August 2013, the SSA has refused to correct the “date of recognition” for Rhode Island in the chart contained in POMS GN 00210.003.
50. Despite these numerous requests from Rhode Island elected officials and LGBT advocacy organizations beginning as early as August 2013, the SSA has refused to reverse its stated position that Judge Best’s decision was “incorrect” and to withdraw its review of Deb’s fully favorable decision from Judge Best by the Appeals Council.
51. Because the SSA has and continues to wrongly interpret and apply 42 U.S.C. § 416(h)(1)(A), Deb has suffered specific, concrete, and irreparable harm, and will continue to suffer such harm.
52. Because the SSA has and continues to wrongly interpret and apply 42 U.S.C. § 416(h)(1)(A), Deb’s monthly income has been reduced to $732 a month, with her SSDI disability benefits as her only source of income. If she were to receive the survivor benefits, she believes that her income would increase to over $2,000 a month.
53. Because the SSA has and continues to wrongly interpret and apply 42 U.S.C. § 416(h)(1)(A), Deb was unable to afford the mortgage on the home that she owned for over 38 years and that she and Pat shared for the entirety of their marriage. As a result, she was forced to sell that home in June 2013, the proceeds from which she used to pay off outstanding debts.
13

54. Due to the denial of benefits, Deb has been rendered destitute and without her own home.
COUNT I: DECLARATORY JUDGMENT ACTION PURSUANT TO 28 U.S.C. § 2201
55. Plaintiff Deborah Tevyaw repeats and realleges the allegations set forth in Paragraphs 1-55 as if fully set forth herein.
56. The Social Security Act is codified in Chapter 7 of Title 42 of the United States Code. See generally 42 U.S.C. §§ 301 et seq.
57. Pursuant to 42 U.S.C. § 902, Defendant Colvin enforces federal law relative to eligibility of benefits through her supervision of the SSA.
58. Under federal law, 42 U.S.C. § 402(e), the qualified widow of a deceased insured shall receive insurance benefits up to the primary insurance amount earned by her insured deceased spouse.
59. Under federal law, 42 U.S.C. § 402(i), the qualified widow of a deceased person shall receive a lump-sum of $255 after the death of her spouse.
60. Deb meets all of the statutory requirements to receive the widows’ insurance benefit and the lump-sum death benefit under the Social Security Act, but for the SSA’s incorrect interpretation and application of 42 U.S.C. § 416(h)(1)(A) to her application.
61. It would be futile for Deb to proceed further with the SSA because she cannot obtain the widows’ insurance benefit or the lump-sum benefit solely because of the SSA’s error of law in its incorrect interpretation and application of 42 U.S.C. § 416(h)(1)(A), as reflected in both its implementing regulations and POMS.
62. An actual controversy exists between the parties.
14

CLAIM II: VIOLATION OF CONSTITUTIONAL EQUAL PROTECTION AND DUE PROCESS
(U.S. Const. Amend. V) 63. Plaintiff Deborah Tevyaw repeats and realleges the allegations set forth in Paragraphs 1-63 as if fully set forth herein. 64. If the SSA’s interpretation and application of 42 U.S.C. § 416(h)(1)(A) is correct, then it violates Deb’s equal protection and due process rights secured by the Fifth Amendment of the Constitution of the United States. 65. It would be futile for Deb to proceed further with the SSA because she cannot obtain the widows’ insurance benefit or lump sum benefit solely because of the SSA’s interpretation and application of 42 U.S.C. § 416(h)(1)(A), as reflected in both its implementing regulations and POMS. 66. Deb will be providing notice of this claim and this complaint to the Attorney General of the United States, pursuant to Federal Rule of Civil Procedure 5.1.
PRAYERS FOR RELIEF WHEREFORE, Plaintiff Deborah Tevyaw prays that this Court:
1. Declare that POMS GN 00210.002(C), Step 11; POMS GN 00210.003, Column II; and 20 C.F.R. § 404.345 are invalid and contrary to the governing Social Security statutes.
2. Declare that Deborah Tevyaw meets the requirements of 42 U.S.C. § 416(h)(1)(A).
3. Declare that a widow/er previously married to someone of the same sex meets the requirements of 42 U.S.C. § 416(h)(1)(A)(i), so long as the courts of the state
15

in which the insured individual is domiciled at the time of death would find that the marriage was validly entered into in the state where the marriage was celebrated.
4. Declare that at the time of Ms. Baker’s death, Rhode Island’s courts would have recognized the marriages of same-sex couples.
5. Declare that at the time of Ms. Baker’s death, Rhode Island’s courts would have found that a widow/er previously married to someone of the same sex has the same status with respect to the taking of personal property as a wife, husband, widow, or widower of the insured individual under Rhode Island law.
6. Find that 42 U.S.C. § 416(h)(1)(A), as interpreted and applied by the SSA through its implementing regulations and POMS, violates constitutional equal protection and due process protections.
7. Enjoin the Defendant Colvin to process Plaintiff Deborah Tevyaw’s application for widow’s and lump sum death benefits without consideration of POMS GN 00210.002(C), Step 11; POMS GN 00210.003, Column III; or 20 C.F.R. § 404.345.
8. Enjoin the Defendant Colvin to process Plaintiff Deborah Tevyaw’s application for widow’s and lump sum death benefits based upon the determination that Ms. Tevyaw has met the requirements of 42 U.S.C. § 416(h)(1)(A).
9. Award attorney’s fees and costs to plaintiffs pursuant to 28 U.S.C. § 2412 or any other applicable statutory provision.
10. Grant such other relief as is just and appropriate.
16

DATED: September 29, 2014

Respectfully submitted,
DEBORAH TEVYAW By her attorneys,
PIERCE ATWOOD
/s/ Michael J. Daly_____________ Michael J. Daly, RI Bar No. #6729 mdaley@pierceatwood.com 72 Pine Street Providence, RI 02903 (401) 588-5113
GAY & LESBIAN ADVOCATES & DEFENDERS
/s/ Janson Wu_______________ Janson Wu, MA BBO#600949 Pro hac vice pending jwu@glad.org Mary L. Bonauto, MA BBO#549967 Pro hac vice pending mbonauto@glad.org 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350

17

EXHIBIT A

EXHIBIT B

GN 00210.002 Same-Sex Marriage Determining Marital Status for Title II and Medicare Benefits
A. Introduction to determining marital status for same-sex marriages
Use these instructions to determine marital status for same-sex couples when the samesex marriage is material to the Title II or Medicare entitlement determination. If the same-sex marriage is not material, process the claim without using these instructions. For example, when a number holder (NH) in a same-sex marriage files for a retirement benefit on the his or her own record, the marital status is not material to the claim; so process the NH’s claim without applying these instructions. Follow the instructions in GN 00210.002B to determine whether to:
 recognize the marriage for purposes of determining entitlement  refer a case for legal opinion; or  hold a case. For instructions on determining whether a non-marital legal relationship meets the relationship entitlement factor for benefits, seeGN 00210.004. Examples of non-marital legal relationship for purposes of these instructions include civil unions, domestic partnerships, and reciprocal beneficiary relationships. For Title XVI cases, see GN 00210.800 to determine same-sex marital status.
B. Policy for determining marital status for samesex couples
In Title II and Medicare claims, we look to the laws of the state of the number holder’s (NH’s) domicile to determine whether we can recognize the marriage. If the NH is alive, we look to the NH’s domicile at the time of application or while the claim is pending a final determination. If the NH has died, we look to the NH’s domicile at the time of his or her death.

Document the place of domicile (city or town, and state) on the RPOC screen. MCS screens do not capture the domicile of the NH. Do not rely on the mailing address or the "place of death" entry on the DECD screen. NOTE: If a member of the couple alleges a prior civil union to an individual other than his or her current spouse, refer the claim for a legal opinion, according to instructions in GN 01010.820.
C. How to determine marital status for same-sex couples

Use these steps to determine marital status:

Step

Action

1 Consult GN 00210.000. Have we published instructions for this type of claim or action, when the case involves a same sex marriage? If yes, go to step 2. If no, hold the case according to instructions in GN 00210.005.

2 Is this a Title XVI or concurrent case?
If yes, use the instructions in GN 00210.800 to develop same-sex marital status for Title XVI claims or for the Title XVI aspects of concurrent claims. Use the instructions in GN 00210.002 to develop for same-sex marital status for the Title II aspects of concurrent claims.
If no, go to step 3.

3 Does the claimant allege a same-sex marriage celebrated in a foreign jurisdiction; that is, was the marriage celebrated somewhere other than in:  the 50 United States,  the District of Columbia,  the U.S. Virgin Islands,  Puerto Rico,  Guam,  American Samoa, or  the Northern Mariana Islands? If yes, proceed according to the instructions in GN 00210.006. If no, go to step 4.

4 Does the claimant allege that the marriage involves a transgender individual? If yes, go to step 5. If no, go to step 6.

5 Follow procedures in GN 00305.005B. Is this a same-sex marriage? If yes, go to step 6.

Step

Action

If no, process the claim under existing instructions for opposite-sex marriages.

6 Did the couple have a ceremonial marriage? If yes, obtain proof of marriage as set out in:  Spouse’s Benefits – Marriage Certification (RS 00202.065)  Spouse’s Benefits – Proof of Marriage (RS 00202.070)  Widow(er)'s Benefits - Table of Proofs and Development – Policy (RS 00207.004)  Evidence Requirements for the Lump-Sum Death Payment (LSDP) (RS 00210.005)  Preferred Proof of Ceremonial Marriage (GN 00305.020)  Secondary Proof of Ceremonial Marriage (GN 00305.025)  Identifying Claimants Who May Need Assistance (GN 00301.180)  Failure to Submit Essential Evidence (GN 01010.410) then go to step 8. If no, go to step 7.

7 Is the claimant alleging that he or she had a non-ceremonial (common-law) marriage) (GN 00305.060) or a deemed marriage (GN 00305.055)?
If yes, refer the case for legal opinion, according to instructions in GN 01010.820.
If no, proceed according to the instructions in GN 00210.004 to develop for a possible non-marital legal relationship.

8 Consult Column I and Column II in GN 00210.003 for “Date Same-Sex Marriages Were Permitted in the State.” If the same-sex ceremonial marriage was celebrated:
 In a state during a period where Column II indicates “hold,” hold the case according to instructions in GN 00210.005.
 In a state not listed, the marriage is not recognized for benefits purposes. Process the claim according to the appropriate instructions in GN 00210.000 for the claim type.
 In a state listed, but outside of the period that the laws of the state permitted same-sex marriage, the marriage is not recognized for benefits purposes. Process the claim according to the appropriate instructions in GN 00210.000for the claim type.
 In a state during a period that the laws of the state permitted same-sex marriage, go to step 9.

9 Is the NH alive? If yes, go to step 10. If no, go to step 11.

10 Was the NH domiciled in any one of the states listed in Column I in GN 00210.003:  When the claimant filed the application; or  At any time during which the claim was pending a final determination?

Step

Action

NOTE: If the NH was domiciled in a foreign country, use the District of Columbia entry in GN 00210.003.

If yes, go to step 12.

If no, go to step 13.

11 Consult Column I and Column III in GN 00210.003. At the time of his or death, was the deceased NH domiciled in a state that at that time recognized same-sex marriages from any other state?
NOTE: If the deceased NH was domiciled in a foreign country, use the District of Columbia entry in GN 00210.003.
If yes, go to step 12.
If no, go to step 13.

12 The claimant is in a marriage that can be recognized for purposes of determining entitlement under Title II and Medicare. Proceed to the appropriate instructions for the benefit type in GN 00210.000 and process accordingly. If there are not instructions for the claim type, hold the claim according to GN 00210.005.

13 The claimant is not in a marriage that can be recognized for purposes of determining entitlement under Title II and Medicare. Proceed to the appropriate instructions for the benefit type in GN 00210.000 and process accordingly. If there are not instructions for the claim type, hold the claim according to GN 00210.005.

D. Examples

1. Examples of claims where there is a marriage that can be recognized for purposes of determining entitlement

1. Allison (the NH) and Liz (the claimant) marry in Massachusetts (MA) after MA permits same-sex marriage. They are domiciled in MA. Liz files for aged spouse’s benefits on Allison’s record while they are domiciled in MA. The marriage can be recognized for purposes of determining entitlement for Title II and Medicare benefits. Accordingly, process the case under the instructions set out in GN 00210.100.
2. Sheldon (the NH) and James (the claimant) are domiciled in Georgia (GA) when they marry while on vacation in MA after MA permits same-sex marriage. James files for aged spouse’s benefits on Sheldon’s record while they both live in GA. While the application is pending, James and Sheldon move to and become domiciled in MA. Because they became domiciled in MA while the application is pending, the marriage can be recognized for purposes of determining

entitlement for Title II and Medicare benefits. Accordingly, process the case under the instructions set out in GN 00210.100.
2. Examples of claims where the marriage cannot be recognized for purposes of determining entitlement
1. Lily (the NH) and Wendy (the claimant) consider themselves married based on a ceremony celebrated in Washington (WA) state on August 23, 2010 (before WA permitted same-sex marriage). They are currently domiciled in WA. Wendy files a claim to receive aged spouse’s benefits from Lily’s record. Because the ceremony occurred before WA permitted same-sex marriage, the NH and claimant cannot be recognized as married for purposes of determining entitlement to Title II benefits or Medicare. Accordingly, process the case under the instructions set out in GN 00210.100.
2. John (the NH) and Dave (the claimant) married in New York on October 1, 2012. John died on January 31, 2013, while domiciled in Minnesota (MN), and Dave filed for surviving spouse benefits. Because the date of John’s death was before the date that MN recognized same-sex marriages, the NH and claimant cannot be recognized as married for purposes of determining entitlement to Title II or Medicare benefits. Accordingly, process the case under the instructions set out in GN 00210.400.
References:  GN 00210.003 Same-Sex Marriage – Dates States Permitted or Recognized SameSex Marriages  GN 00210.004 Non-Marital Legal Relationships with Spousal Inheritance Rights (Such as Civil Unions and Domestic Partnerships)  GN 00305.001 Determining Family Status

EXHIBIT C

GN 00210.003 Same-Sex Marriage – Dates States Permitted or Recognized Same-Sex Marriage

As set out in GN 00210.002, consult this chart to determine:

 which states have laws permitting same-sex marriages;

 the date when the states listed first permitted same-sex marriages;

 which states recognize same-sex marriages from other states; and

 for claims involving a deceased number holder (NH), the date when the states listed first began to recognize same-sex marriages from other states.

COLUMN I

COLUMN II

COLUMN III

State

Date Same-Sex Marriages Were Permitted in the State

Date Same-Sex Marriages from Any
Other State Were Recognized

California (See NOTE)

June 17, 2008 – November 4, 2008 June 26, 2013 - present

June 17, 2008 – November 4, 2008
June 26, 2013 - present

Connecticut November 12, 2008

November 12, 2008

Delaware

July 1, 2013

July 1, 2013

District of Columbia

March 9, 2010

July 7, 2009

Hawaii Illinois

December 2, 2013 December 16, 2013

December 2, 2013 February 21, 2014

Indiana

Hold per instructions in GN 00210.005

Hold per instructions in GN 00210.005

Iowa

April 20, 2009

April 30, 2009

Maine

December 29, 2012

December 29, 2012

Maryland

January 1, 2013

Massachusetts May 17, 2004

February 23, 2010 May 17, 2004

Minnesota

August 1, 2013

August 1, 2013

New Hampshire

January 1, 2010

January 1, 2010

COLUMN I

COLUMN II

COLUMN III

State New Jersey
New Mexico
New York Oregon Pennsylvania
Rhode Island Vermont Washington

Date Same-Sex Marriages Were Permitted in the State
October 21, 2013
August 21, 2013 Per GN 00210.005, hold all claims in which same-sex couples allege a ceremonial marriage in New Mexico based on a marriage license issued by Sandoval County in 2004. July 24, 2011 May 19, 2014 May 20, 2014 Per GN 00210.005, hold all claims in which same-sex couples allege a marriage in Pennsylvania based on a marriage license issued prior to this date. August 1, 2013 September 1, 2009 December 6, 2012

Date Same-Sex Marriages from Any
Other State Were Recognized
Continue to hold per instructions in GN 00210.005. January 4, 2011
February 1, 2008 October 16, 2013 May 20, 2014
May 14, 2012 September 1, 2009 December 6, 2012

NOTE - CALIFORNIA MARRIAGES: Although the laws regarding same-sex marriage in California changed, and there was a period of time when the state did not permit any same-sex marriages, we consider any same-sex marriage celebrated between June 17, 2008 and November 4, 2008, to have been valid since the date of celebration.
For example, if a claimant married a number holder (NH) in California on October 30, 2008, and the NH died while domiciled in California on October 30, 2011, we would recognize the marriage as having duration of three full years for purposes of determining the claimant’s entitlement to survivor benefits or the lump sum death payment. Reference:
GN 00210.002 Same-Sex Marriage - Determining Marital Status for Title II and Medicare Benefits

EXHIBIT D

2012 MAY 14
State of Rhode Island and Providence Plantations
State House, Room 224 Providence, Rhode Island 02903
401-222-2080

Pti 2: 55
1 T:O:

Lincoln D. Chafee Governor

EXECUTIVE ORDER

12-02

May 14,2012

RECOGNITION OF OUT OF STATE, SAME-SEX MARRIAGES

WHEREAS, since at least 1904, Rhode Island has recognized marriages validly celebrated in other states and countries under the principle of comity, regardless of whether the couple could have married in Rhode Island, Ex Parte Chace, 58 A. 978 (R.I. 1904); and

WHEREAS, many Rhode Island same-sex couples have been validly married in other states and countries; and

WHEREAS, the Rhode Island Attorney General issued a formal opinion in 2007 stating that same-sex marriages from other jurisdictions do not violate this state's public policy and therefore must be recognized under principles of comity and full faith and credit, Op. RI. Att'y Gen. (February 20, 2007); and

WHEREAS, the principles articulated in that formal opinion remain unaltered despite regular legislative and judicial attention to same-sex relationships; and

WHEREAS, Rhode Island law does not explicitly prohibit or state any public policy against recognizing the lawful, out of state marriages of same-sex couples-indeed, through both legislation and case law, Rhode Island has long established an affirmative policy of preventing discrimination on the basis of sexual orientation and of supporting the personal, emotional, and legal commitments of same-sex couples; and

WHEREAS, the Rhode Island civil union law expands the state's public policy of supporting the legal commitments of same-sex couples, and extends recognition for alternative spousal relationships of same-sex couples from other states; and

Executive Order 12-02 May 14, 2012 . Page 2
WHEREAS, the recognition of out of state, same-sex couples' marriages comports with this state's law and public policy and ensures that those couples and their children have equal access to the protections and obligations already extended by the State to different-sex married couples and couples who enter civil unions; and
WHEREAS, the Governor, as Chief Executive of this State, is obligated to ensure that all executive state departments, agencies, and offices execute their duties and functions consistent with state law and policy.
NOW, THEREFORE, I, LINCOLN D. CHAFEE, by virtue of the authority vested in me as Governor of the State of Rhode Island and Providence Plantations, do hereby order as follows:
1. All executive state departments, agencies, and offices shall recognize the lawful marriages of same-sex couples as valid for any purpose arising within the execution of its duties.
2. Every department, agency, and office shall conduct a review of policy statements and regulations, and those statutes whose construction is within their purview, to ensure that terms relating to a spousal or familial relationship, including but not limited to "spouse," "husband," and "wife," are construed in a manner that encompasses lawful marriages of same-sex couples, unless some other provision of law or controlling court decision would bar their ability to do so. Where multiple constructions of statutory provisions are possible, all departments, agencies and offices shall adopt the interpretation that favors recognition of, and equal extension of benefits, protections, obligations, or responsibilities to, the marriages of samesex couples.
3. Upon completing its review, each department, agency, or office shall: (i) take steps to direct staff on the proper construction of relevant terms in statutes, regulations, or policies, whether through internal memorandum or policy statement; (ii) initiate the processes to amend any regulation in need of alteration to comply with this Order; and (iii) review and, where necessary, amend all forms used or issued by the State to ensure that all terms connoting a marital or familial relationship are phrased so as to apply to all married couples, including same-sex couples.
This Order shall take effect immediately.
So Ordered:

EXHIBIT E

EXHIBIT F

 
 Gay & Lesbian Advocates & Defenders

Sign up for our Mailing List

Email address

Join

News & Multimedia
Stay informed about developments in legal rights for LGBT and HIV+ people. Hear and see the impact of GLAD's work in our audio podcasts and videos. Read our blog to see what we're thinking - and share your own thoughts - about the events of the day.

Reporters: contact Carisa Cunningham at 617-426-1350, or click here to email

News & Multimedia › News ›
DECEMBER 4, 2014
GLAD Obtains Social Security Survivor Benefits for Disabled RI Widow
GLAD successfully obtained Social Security Widow’s Beneﬁts for 56-year-old Deborah Tevyaw after a three-year-long battle with the Social Security Administration (SSA) following the death of Deb’s wife Patricia Baker who passed in 2011. Over $30,000 in back beneﬁts were paid to Deb on Monday, December 1, 2014 by SSA.
Deb was married in Massachusetts in 2005 to Pat, a career Rhode Island corrections ofﬁcer. Pat was diagnosed with stage 4 lung cancer and died in August 2011. Her ﬁnal months were spent lobbying for marriage equality in Rhode Island, and trying to ensure Deb’s ﬁnancial security. But SSA repeatedly denied survivor beneﬁts to Deb, claiming that Rhode Island would not have recognized Pat and Deb’s marriage at the time of Pat’s death. Deb, as a result, has been living on virtually no income for more than three years.
“Nothing can bring back my wife and my best friend, but at least now Pat can rest in peace and I will be protected by the same safety net that is there for all other widows and widowers,” said Deb.
The SSA, unlike most other federal agencies, has adopted a requirement that the marriages of same-sex couples must be recognized by the state where they live in order to be eligible for Social Security beneﬁts.
“We are thrilled that the SSA has ﬁnally recognized that Rhode Island would have recognized Pat and Deb, and other married couples, as validly married at the time of Pat’s death in 2011,” said Mary L. Bonauto, GLAD Civil Rights Project Director. “At the same time, while Deb’s long battle is ﬁnally coming to an end, the SSA has no business assessing whether a couple’s state of residence would recognize their clearly valid marriage.”
Despite Deb’s valid marriage to Pat, Social Security initially refused in 2012 to provide Deb disabled widow’s beneﬁts and a lump sum death payment, citing the Defense of Marriage Act (DOMA). While Deb appealed this denial, she was living on a disability income of only $723 a month. She was forced to sell her home of 38 years, leaving her destitute and dependent on friends and family.
After DOMA was struck down by the U.S. Supreme Court in June 2013, SSA continued to deny Deb’s appeal, claiming that the state of Rhode Island would not have recognized Deb and Pat’s marriage at the time of Pat’s death. GLAD has continually attempted to demonstrate to the SSA that Rhode Island would actually recognize the marriages of all same-sex couples regardless of when or where they were validly married.
GLAD represented Deb in her appeal to the SSA and also brought a lawsuit on her behalf against the SSA in federal district court in Rhode Island on September 29 of this year.

Contact GLAD

GLBTQ Legal Advocates & Defenders 30 Winter Street, STE 800 Boston, MA 02108

Phone: (617) 426-1350 Fax: (617) 426-3594 Email: gladlaw@glad.org

Press Inquiries: CCunningham@glad.org

En Español Need Legal Help? Mailing List Donate Sitemap Report a Website Problem Legal and Privacy Policies About This Site Copyright © 2016 GLAD, All Rights Reserved.

 
 Case: 1:14-cv-425 As of: 11/08/2017 12:33 PM EST 1 of 2
U.S. District Court District of Rhode Island (Providence) CIVIL DOCKET FOR CASE #: 1:14−cv−00425−WES−LDA

CLOSED

Tevyaw v. Colvin Assigned to: Chief Judge William E. Smith Referred to: Magistrate Judge Lincoln D. Almond Cause: 42:427 Social Security Benefits
Plaintiff

Date Filed: 09/29/2014 Date Terminated: 12/18/2014 Jury Demand: None Nature of Suit: 865 Social Security: RSI Tax Suits Jurisdiction: U.S. Government Defendant

Deborah Tevyaw

represented by Janson Wu Gay & Lesbian Advocates & Defenders 30 Winter Street Suite 800 Boston, MA 02108 617−426−1350 Email: jwu@glad.org PRO HAC VICE ATTORNEY TO BE NOTICED

Mary Bonauto Gay & Lesbian Advocates & Defenders 30 Winter Street Suite 800 Boston, MA 02108 617−426−1350 Email: mbonauto@glad.org PRO HAC VICE ATTORNEY TO BE NOTICED

Michael J. Daly Pierce Atwood LLP 72 Pine Street 5th Floor Providence, RI 02903 401−588−5113 Fax: 401−588−5166 Email: mdaly@pierceatwood.com ATTORNEY TO BE NOTICED

V.
Defendant
Carolyn W. Colvin in her official capacity as the Acting Commissioner of the Social Security Aministration

Date Filed 09/29/2014
09/29/2014

# Docket Text
1 COMPLAINT ( filing fee paid $ 400.00, receipt number 0103−784738 ), filed by Deborah Tevyaw. (Attachments: # 1 Exhibit Notice of Decision, # 2 Exhibit Instructions, # 3 Exhibit Date Chart, # 4 Exhibit Executive Order, # 5 Exhibit 7/8/14 letter, # 6 Exhibit 7/24/14 letter, # 7 Civil Cover Sheet, # 8 summons)(Daly, Michael) (Entered: 09/29/2014)
Case assigned to Chief Judge William E. Smith and Magistrate Judge Lincoln D. Almond. (Melendez, Filipa) (Entered: 09/29/2014)

Case: 1:14-cv-425 As of: 11/08/2017 12:33 PM EST 2 of 2

09/29/2014
09/29/2014 10/22/2014 10/22/2014 10/29/2014 11/10/2014 12/15/2014 12/18/2014

CORRECTIVE DOCKET ENTRY Regarding: 1 Complaint,. This case has been electronically filed and processed, however, after a quality control review the following deficiencies were found: Party Information wa s incorrect and/or incomplete. Correction made by Clerk&rsquo;s Office. No further action is required. Please refer to the Attorney Case Opening Instructions for guidance. (Melendez, Filipa) (Entered: 09/29/2014)
2 Summons Issued as to Carolyn W. Colvin. (Melendez, Filipa) (Entered: 09/29/2014)
3 MOTION for Mary Bonauto to Appear Pro Hac Vice ( filing fee paid $ 50.00, receipt number 0103−791417 ) filed by Deborah Tevyaw. (Daly, Michael) (Entered: 10/22/2014)
4 MOTION for Janson Wu to Appear Pro Hac Vice ( filing fee paid $ 50.00, receipt number 0103−791421 ) filed by Deborah Tevyaw. (Daly, Michael) (Entered: 10/22/2014)
5 SUMMONS Returned Executed by Deborah Tevyaw. Carolyn W. Colvin served on 10/17/2014, answer due 11/7/2014. (Daly, Michael) (Entered: 10/29/2014)
TEXT ORDER granting 3 Motion to Appear Pro Hac Vice of Mary Bonauto ; granting 4 Motion to Appear Pro Hac Vice of Janson Wu. So Ordered by Chief Judge William E. Smith on 11/10/14. (Jackson, Ryan) (Entered: 11/10/2014)
6 NOTICE by Deborah Tevyaw of Dismissal (Daly, Michael) (Entered: 12/15/2014)
TEXT ORDER Entering 6 Notice of Dismissal filed by Deborah Tevyaw. So Ordered by Chief Judge William E. Smith on 12/18/14. (Jackson, Ryan) (Entered: 12/18/2014)