ISSUE PRESENTED
You have asked whether a Delaware court would recognize a domestic partnership entered
into by a same-sex couple in California in August 2006 where one of the partners passed
away while domiciled in Delaware in 2013.
SUMMARY
As of July 1, 2013, Delaware would recognize the same-sex domestic partnership entered
into by the claimant and the Number Holder in California on August XX, 2006.
BACKGROUND[1]
On August XX, 2006, R~ (the claimant) and J~ (the Number Holder) entered into a same-sex
domestic partnership in E~ M~, California. In late 2006, the couple moved to Delaware.
On July XX, 2013, the Number Holder passed away while domiciled in Delaware. On August XX, 2013,
two weeks after the Number Holder’s death, the claimant contacted the agency to file
an application for surviving spousal benefits and a lump-sum death payment (LSDP)
on the Number Holder’s record as the Number Holder’s surviving spouse living in the
same household (LISH) as the Number Holder at the time of his death.
DISCUSSION
1. Federal Law and Agency Guidance
A “non-marital legal relationship (such as a civil union, domestic partnership, or
reciprocal beneficiary relationship) can be treated as a marital relationship for
purposes of determining entitlement to benefits” if two requirements are met: (1)
the non-marital legal relationship “was valid in the place it was established” and
(2) it “qualifies as a marital relationship using the laws of the state of the [number
holder’s] domicile or would allow the claimant to inherit a spouse’s share of the
NH’s personal property should the NH have died without leaving a will.” POMS GN 00210.004(A),
(C); see also 20 C.F.R. § 404.345 (agency must look to the laws of the insured’s domicile at the
time he died).
Thus, even though they were never married, the claimant will be considered the Number
Holder’s spouse for Social Security benefit purposes if (1) their same-sex domestic
partnership was valid in California and (2) Delaware law would recognize the California
domestic partnership as a marital relationship under its laws or would allow members
of a California domestic partnership to inherit the same share as a spouse under its
intestacy laws at the time of the NH’s death. We will address each point in turn.
2. The Domestic Partnership Between the Claimant and the Number Holder Was Valid in
California When it Was Entered Into in 2006
Initially, we conclude that the domestic partnership between the claimant and the
Number Holder was valid under California law at the time it was entered into on August
XX, 2006.
California affords domestic partnerships registered with the State on or after January
1, 2000 the same rights and responsibilities as marriage. Cal. Fam. Code § 297.5(a)
(West 2016); see also POMS GN 00210.004.D. California law defines domestic partners as “two adults who have chosen to share
one another’s lives in an intimate and committed relationship of mutual caring.” Cal.
Fam. Code § 297(a) (West 2016). A domestic partnership is established when both persons
file a Declaration of Domestic Partnership with the Secretary of State. Cal. Fam.
Code § 297(b) (West 2016). To establish a domestic partnership, the couple must (1)
not be married to someone else or a member of another domestic partnership; (2) not
be related by blood; (3) be of at least 18 years of age (except in circumstances not
applicable here); (4) be either members of the same sex or, if of the opposite sex,
one or both are over 62 years of age and meet the eligibility requirements for old-age
Social Security benefits; and (5) both be capable of consenting to the domestic partnership.
Cal. Fam. Code § 297 (West 2016).
In addition, each domestic partner has a right to inherit intestate from the other
domestic partner to the same extent as a surviving spouse. Cal. Fam. Code § 297.5(c)
(West 2016); see also POMS GN 00210.004.D (California state-registered domestic partnerships convey spousal inheritance rights,
and the agency will treat the domestic partners as if they were married).
We have no reason to doubt the validity of the domestic partnership between the claimant
and the Number Holder. Based on the information provided, the couple entered into
a domestic partnership on August XX, 2006, after California began conferring spouse-like
inheritance rights to surviving domestic partners. In addition, the claimant has submitted
a copy of a Certificate of Registered Domestic Partnership with the signature and
seal of the Secretary of State. Furthermore, in addition to satisfying the registration
requirement, (1) there is no evidence to show that either individual was a party to
a prior domestic partnership, (2) related by blood; (3) not at least 18 years old;
(4) not of the same sex; or (5) not capable of consenting to the domestic partnership.
Therefore, based on the evidence provided, the domestic partnership between the claimant
and the Number Holder appears to have been valid under California law at the time
it was entered into on August XX, 2006.
3. Delaware Would Recognize the Couple’s California Domestic Partnership.
Accordingly, we consider:
whether Delaware would recognize the California domestic partnership as a marital
relationship under its laws, or
whether Delaware would recognize the California domestic partnership as a relationship
conveying the same inheritance rights as a spouse under its intestacy law on July XX,
2013, the date of the Number Holder’s death. We find that a Delaware court would likely
recognize the domestic partnership under both of these circumstances on that specific
date.
Delaware Recognizes Domestic Partnerships Established in Other Jurisdictions.
Same sex marriages became legal in Delaware on July 1, 2013, with the passage of the
Civil Marriage Equality and Religious Freedom Act of 2013 (the “Act”). See Del. Code Ann. tit. 13, § 218. As of that date, no new civil unions were permitted
and parties to civil unions were allowed to convert their civil unions to a marriage.
See Del. Code Ann. tit. 13, § 218 (a).
In addition to legalizing same sex marriage in Delaware, Delaware statutes provide
that parties to a legal union other than marriage (whether designated as a civil union,
domestic partnership, or another relationship) between two persons of the same gender
established in another jurisdiction, “shall be afforded the same rights, benefits, protections, responsibilities, obligations
and duties as are afforded and imposed upon married spouses” for the purposes of Delaware
law. Del. Code Ann. tit. 13, § 101(e) (West 2016) (emphasis added). For such recognition
to apply, the legal union must (1) be validly entered into in such other jurisdiction;
(2) not otherwise be prohibited as a marriage by reason of consanguinity as set forth
in subsection (a) of this section; and (3) afford and impose on the parties substantially
the same rights, benefits, protections, responsibilities, obligations, and duties
of a marriage. Del. Code Ann. tit. 13, § 101(e) (1)-(3) (West 2016).
Here, we find that a Delaware court would likely recognize the California domestic
partnership between the claimant and the Number Holder. The California domestic partnership
was validly entered into in California on August XX, 2006, when California recognized
same-sex domestic partnerships. The claimant and the Number Holder satisfied the requirement
that their same-sex domestic partnership be registered with the Secretary of State.
The claimant and the Number Holder would meet the eligibility requirements to enter
into a marriage in the state of Delaware, as we have no evidence to suggest that it
would have been prohibited by reason of consanguinity. The California domestic partnership
afforded and imposed on the parties substantially the same rights, benefits, protections,
responsibilities, obligations, and duties of a marriage (under California law).[2] Therefore, a Delaware court would likely recognize the California domestic partnership
as a marital relationship under Delaware law.
CONCLUSION
We believe that as July 1, 2013, when it began to recognize same-sex marriage, Delaware
would recognize the same-sex domestic partnership entered into by the claimant and
the Number Holder in California on August XX, 2006.
Respectfully,
Nora R. Koch
Acting Regional Chief Counsel, Region III
Anne von Scheven
Assistant Regional Counsel