Question
Is M~ (Claimant), the surviving civil union partner of the decedent number holder
D~ (NH), entitled to a lump-sum death payment (LSDP) on the record of NH and to an
underpayment owed to NH, where the civil union was performed in Vermont and NH resided
in New York with Claimant when NH died?
Short Answer:
We believe that Claimant could inherit the spouse’s share of NH’s property under New
York intestacy law, and Claimant was living with NH at the time of NH’s death. Thus,
Claimant is deemed the NH’s widow under the Social Security Act (Act). Accordingly,
there would be legal support for an adjudicator to find that Claimant is entitled
to the LSDP on the record of NH and to the underpayment owed to NH.
Background:
Claimant and NH entered into a civil union in Bennington, Vermont on July xx,2003.
NH died on January xx, 2015 in Colonie, New York. Claimant and NH were living together
in Albany, New York at the time of NH’s death.
ANALYSIS
A. Social Security Act and Regulations
A claimant may be entitled to an LSDP under Title II of the Act if she establishes,
among other things, that she is the insured’s widow(er) and was living in the same household[1] as the insured at the time of the insured’s death. 42 U.S.C. § 402(i); 20 C.F.R.
§§ 404.390 - 404.391. The agency considers a claimant to be the insured’s widow(er)
if the courts of the State in which the insured resided at the time of death would
find that the claimant and the insured were validly married at the time the insured
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. A surviving spouse, i.e.
a widow or widower, may also be entitled to priority for distribution of any underpayment
owed to the deceased insured. 42 U.S.C. § 404(d)(1); 20 C.F.R. § 404.503(b) (referring
to a surviving spouse “as defined in section 216(c), (g), or (h) of the Act”); see
42 U.S.C. § 416(a)(2) (noting that the term “surviving spouse” means a widow as defined
in subsection (c) or a widower as defined in subsection (g)). Accordingly, a claimant
who was in a civil union with the insured can be considered the insured’s surviving
spouse if the relationship was valid in the place where it was established, and would
allow the claimant to inherit a spouse’s share of the insured’s personal property
if the insured died without leaving a will. POMS GN 00210.004.
When NH died on January XX, 2015, she was domiciled in New York State. Claimant lived
with NH at the time of NH’s death, so that the living-in-the-same-household requirement
was met. Thus, in order for Claimant to be entitled to an LSDP or underpayment on
NH’s account: (1) the civil union between Claimant and NH must be valid in Vermont
and (2) under New York law, Claimant must have been able to inherit a spouse’s share
of NH’s personal property had NH died without leaving a will. See POMS GN 00210.004C.
A. Vermont Law [2]
Vermont’s civil union statute, which became effective on July 1, 2000, provides that
parties to a civil union will be entitled to “the benefits and protections and be
subject to the responsibilities of spouses.” Vt. Stat. Ann. tit. 15, § 1201(2). Of
relevance here, for a civil union to be established in Vermont, the parties must (1)
not be a party to another civil union or a marriage and (2) be of the same sex, and
(3) not enter a civil union with certain relatives. Vt. Stat. Ann. tit. 15, §§ 1202,
1203. Vermont recognizes civil unions as affording “all the same benefits, protections
and responsibilities under the law … as are granted to spouses in a civil marriage.”
Vt. Stat. Ann. tit. 15, § 1204(a). A party to a civil union is included in the definition
of the term spouse, family, immediate family, dependent, next of kin and “other terms
that denote the spousal relationship, as those terms are used throughout the law.”
Vt. Stat. Ann. tit. 15, § 1204(b). Laws of descent and distribution, intestate succession,
survivorship, “or other incidents of the acquisition, ownership, or transfer, inter
vivos or at death” are included as listed examples that apply to parties to a civil
union in a like manner to spouses. Vt. Stat. Ann. tit. 15, § 1204(e)(1).
On September 1, 2009, Vermont changed its legal definition of civil marriage from
the “legally recognized union of one man and one woman” to the “legally recognized
union of two people.” Vt. Stat. Ann. tit. 15, § 8, amended by An Act Relating to Civil
Marriage, 2009 Vermont Laws No. 3 (S. 115). The enactment of S. 115 did not affect
existing civil unions entered into before September 1, 2009.[3] Couples who entered into a civil union remained joined in civil union until the death
of one of the partners unless (1) they legally dissolved their relationship by court
order, or (2) the couple subsequently married and chose to dissolve their civil union
upon their marriage. Vt. Stat. Ann. tit. 15, § 1206, Vt. Stat. Ann. tit. 18, § 5131(4),
12-3 Vt. Code. R. 206(9).
Claimant and NH entered into a valid civil union in 2003. They were of the same sex
and there is no evidence that they were relatives or that either woman was party to
another civil union or marriage. There is also no evidence that Claimant and NH dissolved
their civil union or that they entered into a marriage after same-sex marriage became
legal in Vermont. As such, under Vermont law, Claimant and NH continued in a valid
civil union until NH died. The question, thus, becomes whether the couple’s Vermont
civil union qualifies as a marital relationship under New York law or whether the
couple’s civil union would allow Claimant to inherit a spouse’s share of NH’s personal
property should NH have died without a will. See 42 U.S.C. § 416(h)(1)(A)(ii); 20
C.F.R. § 404.345.
.
C. New York Law
New York’s longstanding 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, including the intestacy
section (4-1.1), “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.
In 2008, although New York did not permit same sex marriages to be contracted within
the State, the State’s governor indicated that recognizing same-sex marriages from
other jurisdictions was consistent with public policy. See Letter from David Nocenti,
Advisor to Governor of New York David Paterson, to All Agency Counsel (May 14, 2008),
available at https://www.nycbar.org/pdf/memo.pdf. [4] The governor directed staff to “ensure that terms such as ‘spouse,’ ‘husband’ and
‘wife’ [were] construed in a manner that encompasses legal same-sex marriages, unless
some other provision of law would bar your ability to do so.” Id.; see also Golden
v. Paterson, 877 N.Y.S.2d 822 (Sup. Ct. 2008) (upholding the governor’s directive).
New York’s 2011 Marriage Equality Act (MEA), which conferred on same-sex couples the
right to marry, uses the terms “spouses” and “parties in a marriage” interchangeably
and provides that such individuals shall have all the rights and responsibilities
attendant to marriage. N.Y. Dom. Rel. Law § 10-a, amended by Marriage Equality Act,
2011 Sess. Law News of N.Y. Ch. 95 (A. 8354). The MEA provides that, “[w]hen necessary
to implement the rights and responsibilities of spouses under the law, all gender-specific
language or terms shall be construed in a gender-neutral manner in all such sources
of law.” N.Y. Dom. Rel. Law § 10-a (b). The MEA did not, however, convert existing
civil unions into “marriages,” define parties to a civil union as husbands, wives,
or spouses, or otherwise equate the two institutions.
Recently, in a case involving property rights, New York’s Appellate Division, Fourth
Department[5] addressed the status of Vermont civil unions. The Court held that “a civil union
is not equivalent to a marriage for the purposes of equitable distribution of property”
under the State’s Domestic Relations Law. O’Reilly-Morshead v. O’Reilly-Morshead,
83 N.Y.S.3d 379, 381 (App. Div. 2018); see N.Y. Dom. Rel. Law § 236. 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., 14 N.Y.3d 576 (2010), abrogated
on other grounds by Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (2016))).[6]
Based upon the above law, we believe that Claimant could inherit from NH. Even if
the couple’s Vermont civil union was not a marriage and they were not “spouses” as
contemplated by the EPTL, the 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 Vermont civil union. Although the 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
the civil union. And while O’Reilly-Morshead did not come from New York’s highest
court, its recognition of rights arising from same-sex relationships is broadly consistent
with that court’s holding in Debra H. and the legislative and executive branches’
general movement in that direction.
Conclusion
As discussed above, we believe that courts in New York, where NH was domiciled at
the time of her death, would allow Claimant to inherit the spouse’s share of NH’s
intestate estate. In addition, Claimant was living with NH at the time of NH’s death.
Therefore, we believe there is legal support for the agency to conclude that Claimant
is entitled to the LSDP and underpayment on the record of NH.