QUESTION PRESENTED
You asked whether S~ (Claimant) is the widow of the deceased number holder M~ (NH),
as required for mother’s insurance benefits under Title II of the Social Security
Act (Act), based on the opposite-sex domestic partnership that the couple entered
into on March XX, 2008, in the District of Columbia (D.C.), where the NH was domiciled
in New York when he died on January XX, 2015.
ANSWER
We believe that New York courts would find that at the time of the NH’s death on January
XX, 2015, the Claimant could inherit a spouse’s share under New York intestacy law
based on her valid D.C. opposite-sex domestic partnership with the NH. As such, there
is legal support for the agency to find that the Claimant is the NH’s widow for purposes
of determining her entitlement to mother’s insurance benefits on the NH’s record.
BACKGROUND[1]
Claimant and NH had a child in 2007. As evidenced by a Certificate of Domestic Partnership
issued by the D.C. Department of Health, Claimant and NH entered into a valid domestic
partnership on May XX, 2008, in D.C.
NH and Claimant had been separated at least since July XX, 2013, and never resided
in the State of New York together. There is no evidence of a formal termination of
the domestic partnership. We have no information indicating that the Claimant or the
NH married anyone else. The NH died on January XX, 2015, while domiciled in New York.
The child is currently receiving surviving child’s benefits on NH’s record, and Claimant
applied for mother’s benefits on NH’s record as his widow with his child in her care.
ANALYSIS
A. Federal Law: Widow(er) under the Act for Mother’s Insurance
Benefits
Under Title II of the Act, a claimant may be entitled to mother’s insurance benefits
on a deceased insured individual’s account if, among other things, the claimant is
the widow(er) of the insured individual and their marital relationship lasted at least
nine months before the insured individual died[2] . See 42 U.S.C. § 402(g)(1) (mother’s and father’s insurance benefits), § 416(a)(2)
(“surviving spouse” means a widow or widower); 20 C.F.R. § 404.339(a) (you are entitled
to mother’s or father’s insurance benefits if you are the widow(er) of the insured
and meet the conditions in § 404.335(a)); Program Operations Manual System (POMS)
RS 00208.001 (mother/father definitions and requirements for mother’s or father’s benefits).
The agency will find that a claimant is an insured individual’s widow(er) if the courts
of the State in which the insured individual was domiciled at the time of death would
find that the claimant and the insured individual were validly married at the time
the insured individual died, or if, under application of that State’s intestate succession
laws, the claimant would be able to inherit a spouse’s share of the insured’s personal
property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345; POMS GN 00305.001, GN 00305.005A.
It is our understanding that there is no evidence or allegation of a valid marriage
between the Claimant and the NH; rather, there is only evidence of their D.C. domestic
partnership. Following section 216(h)(1)(A)(ii) of the Act, the agency will treat
a couple’s non-marital legal relationship as a marital relationship and consider a
claimant to be the NH’s widow(er) for Title II benefit purposes if the State of the
NH’s domicile would allow the claimant to inherit a spouse’s share of the NH’s personal
property if the NH died without leaving a will. See 42 U.S.C. § 416(h)(1)(A)(ii);
20 C.F.R. § 404.345; see also POMS GN 00305.005A (non-marital legal relationships can be treated as marital relationships for Title
II benefit purposes). Here, the NH was domiciled in New York when he died. Thus, New
York law applies to determine whether the Claimant is the NH’s widow based on the
couple’s D.C. domestic partnership.
B. State Law: The Opposite-Sex Domestic Partnership was Valid under D.C. Law and
Would Allow the Claimant to Inherit a Spouse’s Share under New York Intestate Succession
Law
To determine whether a claimant in a non-marital legal relationship is considered
married for Title II benefit purposes, we consider whether the non-marital legal relationship
is valid under the laws of the State in which it was established and whether the State
of domicile would allow the claimant to inherit a spouse’s share under intestate succession
law based on the non-marital legal relationship. See 42 U.S.C. § 416(h)(1)(A)(ii);
20 C.F.R. § 404.345.
1. D.C. Law: The Domestic Partnership is Valid under D.C.
Law
We first consider whether the couple’s domestic partnership was valid in D.C..[3] Pursuant to the Health Care Benefits Expansion Act of 1992, now codified at D.C.
Code §§ 32-701 – 32-710, (1992 Act) (which was fully effectuated in 2002), same-sex
and opposite-sex couples were permitted to enter into domestic partnerships in D.C.
Thereafter, the District of Columbia Domestic Partnership Equality Amendment Act of
2006 amended numerous statutory provisions of the D.C. Code to expand the benefits
granted to domestic partners, conferring on them similar rights and responsibilities
held by spousal couples in the areas of spousal immunity, inheritance, spousal support,
and public assistance. See 2006 D.C. Legis. Serv. 16-79 (effective April 4, 2006).
Of most importance here, the District of Columbia Domestic Partnership Equality Amendment
Act of 2006 amended provisions of the D.C. Code’s intestate provisions so that an
intestate share could transfer to a “surviving spouse” or “surviving domestic partner”
upon death. D.C. Code § 19–302. Further, the Omnibus Domestic Partnership Equality
Amendment Act of 2008 amended the D.C. Code to replace the word “spouse” with the
phrase “spouse or domestic partner.” See 2008 D.C. Legis. Serv. 17-231 (effective
September 12, 2008). Termination of marriages and domestic partnerships are still
governed by separate sections of the D.C. Code. Compare D.C. Code § 16–904 with D.C.
Code § 32–702.
In summary, a domestic partnership is recognized under D.C. law as a separate legal
institution from a marriage. In addition, D.C. law provides domestic partners with
many of the same rights and responsibilities as spouses to a marriage, including the
right to inherit from a decedent as a surviving domestic partner under D.C. intestate
succession law. See POMS GN 00210.004D.5. [4]
To enter into a valid domestic partnership in D.C., a couple is required to (1) register
as domestic partners by executing a declaration of domestic partnership, and (2) file
that declaration with the Mayor. See D.C. Code § 32-702(a); DC Health, Domestic Partnership,
https://dchealth.dc.gov/service/domestic-partnership (last visited May 23, 2022) (“Since June 11, 1992, unmarried persons of the same
or different genders, regardless of one’s place of residence, have been legally able
to register as domestic partnership in the District of Columbia.”); Health Care Benefits
Expansion Act of 1992, 1992 District of Columbia Laws 9-114 (Act 9-188). The declaration
must be signed by the domestic partners, who affirmed under penalty of perjury that
each domestic partner was at least 18 years old; was the sole domestic partner of
the other person; was not married; and was in a committed relationship with the other
person. D.C. Code § 32-702(a). Here, as evidenced by the Certificate of Domestic Partnership
issued by the D.C. Department of Health, the Claimant and NH entered into a valid
domestic partnership in D.C. on May XX, 2008, that complies with the requirements
of section 32-702 of the D.C. Code.
D.C. law provides that a registered domestic partnership may be terminated only by
the following methods: (1) either party files a termination statement with the Mayor
declaring that the partnership is to be terminated and a copy of the termination has
been served on the other partner if the statement is not signed by both parties; (2)
either party abandons the domestic partnership and the other party files a termination
statement declaring that the partnership is to be terminated, the abandoning party
departed the mutual residence at least six months before the termination statement,
and a copy of the statement is served on the abandoning party if the location is known;
(3) if the parties marry each other or another person; (4) by the death of either
domestic partner; or (5) by judicial decree or judgment. See D.C. Code § 32-702(d).
Despite the fact that NH and Claimant lived separately and may have qualified for
termination on the ground of abandonment, there is no indication that a termination
statement was ever filed with the Mayor. See D.C. Code § 32-702(d)(1), (2). Further,
there is no information that either party married someone else or obtained a judicial
decree or judgment terminating the domestic partnership. See D.C. Code § 32-702(d)(3),
(5).
As the statute makes clear that the only way to terminate a domestic partnership is
through the methods listed in the statute, the NH and the Claimant remained in this
valid D.C. domestic partnership until the time of NH’s death on January XX, 2015,
in New York. See D.C. Code § 32-702(d)(4) (a domestic partnership shall terminate
upon the death of either domestic partner).
2. New York State Law: New York Would Allow the Claimant to Inherit a Spouse’s
Share under Intestate Succession Law based on the D.C. Domestic Partnership
We next consider whether the Claimant could inherit a spouse’s share from the NH under
New York intestate succession law based upon the couple’s valid D.C. domestic partnership.
New York’s Estates, Powers, and Trusts Law (EPTL) provides that an intestate decedent’s
property may pass to his or her “spouse.” N.Y. Est. Powers & Trusts Law § 4-1.1(a).
Though the intestacy section of the EPTL does not define “spouse,” the law elsewhere
advises that for purposes of various sections of the EPTL, “a husband or wife is a
surviving spouse …” barring certain exceptions. N.Y. Est. Powers & Trusts Law § 5-1.2(a).
The EPTL does not further define spouse, husband, or wife.
Unlike D.C. law, New York State has not enacted legislation allowing domestic partnerships.
Thus, there is no state-wide authorization of domestic partnerships or recognition
of out-of-state domestic partnerships under New York State law. Some cities, towns,
and counties in New York have authorized domestic partnerships under their local laws.
The New York Legislature has offered only limited statutory rights to such unmarried
domestic partners. Some of the rights afforded to domestic partners include: right
to visit partner if they are a patient in a hospital or similar entity (N.Y. Pub.
Health Law § 2805-q); right to death benefits for surviving domestic partners of those
who perished in the September 11, 2001 terrorist attacks (N.Y. Workers’ Comp. Law
§ 4); right to special tax extensions for individuals whose domestic partner is deployed
on a military assignment (N.Y. Real Prop. Tax Law § 925-d); right to dispose of partner’s
remains in the event of death and give away partner’s organs as an anatomical gift
(N.Y. Pub. Health Law §§ 4201, 4301); right of cancellation on specific contracts
(N.Y. Gen. Bus. Law § 653); right to sell or exchange arms within family (N.Y. Gen.
Bus. Law § 898); and right to video teleconferencing with partner ordered to active
duty (N.Y. Mil. Law § 254). However, of most importance here, the statutory rights
granted to unmarried domestic partners do not include the right to inherit under New
York intestacy law as a “spouse.”[5] See O’Reilly-Morshead v. O’Reilly-Morshead, 83 N.Y.S.3d 379, 381 (N.Y. App. Div.
2018) (“When the New York State Legislature enacted the Marriage Equality Act, it
granted same-sex couples the right to marry, but it did not grant those couples who
had entered into civil unions the same rights as those who marry.”).
Although New York statutory law does not expressly provide for the recognition of
an out-of-state non-marital legal relationship, based on recent case law, we believe
New York courts would apply principles of comity to recognize a non-marital legal
relationship with inheritance rights (like the couple’s D.C. domestic partnership)
for the purpose of inheritance of a spouse’s share under New York intestate succession
laws. See Ehrlich-Bober & Co. v. University of Houston, 404 N.E.2d 726, 730 (N.Y.
1980) (“The doctrine of comity ‘is not a rule of law, but one of practice, convenience
and expediency.’ It does not of its own force compel a particular course of action.
Rather, it is an expression of one State’s entirely voluntary decision to defer to
the policy of another.”) (internal citations omitted). In 2018, in a marriage dissolution
case filed in New York also involving the equitable distribution of property rights
acquired during a Vermont civil union (prior to the couple’s marriage), New York’s
Appellate Division, Fourth Department[6] addressed the status of Vermont civil unions under New York law. The Court held that
“a civil union is not equivalent to a marriage for the purposes of equitable distribution
of property” under New York’s Domestic Relations Law. O’Reilly-Morshead v. O’Reilly-Morshead,
83 N.Y.S.3d 379, 381 (N.Y. App. Div. 2018). The Court went on, however, to hold that
“comity does require the recognition of property rights arising from a civil union
in Vermont,” pointing out that marriage-equivalent property division is one of the
rights granted by Vermont’s civil union law. Id. at 382 (citing Vt. Stat. Ann. tit.
15, § 1204(d)). The Court emphasized that New York’s and Vermont’s laws shared a common
public policy, which was to “predicate[] [property rights] on objective evidence of
a formal legal relationship …” Id. The Court also relied on a decision from the Court
of Appeals, New York’s highest court, which applied the principle of comity to recognize
parental status arising from Vermont law, but “left open the question whether New
York should extend comity to the civil union for purposes other than parentage.” Id.
(citing Debra H. v. Janice R., 930 N.E.2d 184 (N.Y. 2010), abrogated on other grounds
by Brooke S.B. v. Elizabeth A.C.C., 61 N.E.3d 488 (N.Y. 2016)).
In the present claim, even though we believe New York courts would find that the couple’s
D.C. domestic partnership was not a marriage and they were not “spouses” as contemplated
by New York’s EPTL, the New York Appellate Division’s decision in O’Reilly-Morshead
suggests that New York courts would nonetheless apply the principle of comity to recognize
inheritance rights arising from the D.C. domestic partnership. As with Vermont’s civil
union law, D.C.’s domestic partnership law provides for marriage-equivalent property
distribution, as discussed above. See D.C. Code § 19–301 et seq. (statutory provisions
regarding intestate succession); see also Domestic Partnership Equality Amendment
Act of 2006, 2006 D.C. Legis. Serv. 16-79 (effective April 4, 2006) (“An Act to amend
the District of Columbia Official Code to grant domestic partners similar rights and
responsibilities currently held by spousal couples in the areas of spousal immunity,
inheritance, surviving spouses and children, spousal support, and public assistance.”).
D.C. law provides domestic partners with many of the same rights and responsibilities
as spouses to a marriage, including the right to inherit from a decedent as a surviving
domestic partner under D.C. intestate succession law. See D.C. Code § 19-302. Although
the New York Appellate Division did not speak directly to intestate rights of inheritance,
we see no basis on which to distinguish this form of property right from other property
rights arising from a civil union or domestic partnership. And while O’Reilly-Morshead
did not come from New York’s highest court, its recognition of rights arising from
non-marital legal relationships is broadly consistent with that court’s holding in
Debra H.
Accordingly, we believe New York courts would apply principles of comity to recognize
the Claimant’s right to inherit a spouse’s share under New York intestate succession
law based on their valid D.C. domestic partnership, which provided for inheritance
rights under D.C. law. [7] See POMS PR 05840.035 New York, A. 19-045 (Jan. 31, 2019) (advising that New York would likely apply principles
of comity to recognize the valid Vermont civil union and allow inheritance of a spouse’s
share under New York intestate succession law).
CONCLUSION
We believe that New York courts would find that at the time of the NH’s death on January
XX, 2015, the Claimant could inherit a spouse’s share under New York intestacy law
based on her valid D.C. domestic partnership with the NH. As such, there is legal
support for the agency to find that the Claimant is the NH’s widow for purposes of
determining her entitlement to mother’s insurance benefits on the NH’s record.