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Mar 25, 2008

Social Security Opinion On Legal Effect Of Sex Change Surgery

An opinion, apparently from Social Security's Office of Regional Counsel:
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. ...

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 ยง 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. ...

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. ...

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.

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  • 1 Comments:

    Anonymous Anonymous said...

    We had a case in WI with a similar determination. The claimant's SSI claim was denied due to her husband's income. She argued that because her husband had undergone a sex change after the marriage they were no longer legally married as WI law does not recognize same sex marriage. It was ruled that because a sex change was not listed as a terminating event of a marriage in WI law they were still married and the spouse' income was deemed available for the claimant's support.

    1:01 PM, March 25, 2008  

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