ISSUE PRESENTED
You asked whether Social Security should consider a same-sex couple as married for
benefit purposes based on a 2002 Vermont civil union, where the number holder (NH)
passed away in 2015, domiciled in Pennsylvania.
SUMMARY
We believe that the Pennsylvania courts would recognize a Vermont civil union as a
relationship conveying the same inheritance rights as a “spouse” to allow the claimant
to inherit from the NH under the Pennsylvania intestacy statutes. Therefore, the agency
could deem the couple as married for purposes of determining entitlement to benefits
under Title II of the Social Security Act.
BACKGROUND[1]
On July XX, 2002, L~ (the claimant) and D~ (the NH) entered into a same-sex civil
union in Vermont. On May XX, 2015, the NH passed away in Pennsylvania where she was
domiciled.
On July XX, 2015, the claimant contacted the agency to file an application for surviving
spouse’s benefits and the LDSP as the NH’s surviving spouse, living in the same household
(LISH), at the time of NH’s death.
DISCUSSION
1. Federal Law and Agency Guidance
An individual must establish a marital relationship with the NH, of at least nine
months duration, in order to be entitled to widow’s or widower’s benefits. 42 U.S.C.
§ 402(e) & (f); 20 C.F.R. § 404.335.[2] The Agency determines whether a non-marital legal relationship qualifies as a marital
relationship using the intestacy laws of the state of the NH’s domicile when he or
she died. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. 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.” POMS GN 00210.004(B). Here, the NH and claimant entered into a Vermont civil union; however, the NH
was domiciled in Pennsylvania at the time of death.
Thus, even though they were never married, the claimant will be considered the NH’s
spouse for Social Security benefit purposes if (1) their civil union was valid in
Vermont and (2) Pennsylvania law would have allowed members of a Vermont civil union
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. Vermont Law
Initially, we conclude that the civil union between the claimant and the NH was valid
under Vermont law.
In this case, the claimant provided a Vermont license and certificate of civil union
issued on August XX, 2002.[3] To establish a Vermont civil union, the parties must (1) not be a party to another
civil union or marriage; (2) be of the same sex; and (3) meet the criteria and obligations
set for in 18 V.S.A. chapter 106 (pertaining to records and licenses). See Vt. Stat. Ann. tit. 15, § 1202 (West 2016). Civil unions entered into in Vermont
from July 1, 2000, through September 1, 2009, are valid in Vermont.[4] See Vt. Stat. Ann. tit. 15, § 1202 (portions repealed by Vt. Stat. Ann. tit. 15, § 8
(West 2009)); 1204(a) (West 2009); POMS GN 00210.004(D).
Vermont law does not define a civil union between partners of the same sex as a marriage.
See Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951, 962 (Vt. 2006) (citing Baker v. State, 744 A.2d 864, 869 (Vt. 1999)). However, under Vermont law, same-sex couples in a
civil union have all of the same benefits, protections, and responsibilities as Vermont
grants to spouses in a civil marriage. See Vt. Stat. Ann. tit. 15, §§ 1201(2), 1204 (West 2016); see also Baker, 744 A.2d at 886 (finding a state constitutional obligation to extend to same-sex
couples the common benefit, protection, and security that Vermont law provides to
opposite-sex married couples). Significantly, “[a] party to a civil union shall be
included in any definition or use of the terms ‘spouse,’ ‘family,’ ‘immediate family,’
‘dependent,’ ‘next of kin,’ and other terms that denote the spousal relationship,
as those terms are used throughout the law.” See Vt. Stat. Ann. tit. 15, § 1204(b) (West 2016).
We have no reason to doubt the validity of the civil union between the claimant and
the NH. Based on the information provided, the couple entered into a civil union in
Vermont on July XX, 2002, during the period in which civil unions were available in
Vermont. Moreover, (1) there is no indication that either individual was a party to
a prior civil union or marriage, (2) both individuals were females, and (3) they appear
to have met the criteria and obligations pertaining to records and licenses as evidenced
by the documentation provided. Therefore, their civil union appears valid under Vermont
law.
3. Pennsylvania Law
Because the civil union between the NH and the claimant was valid in Vermont, we ask
whether Pennsylvania would have recognized the civil union as a relationship conveying
the same inheritance rights as a spouse under its intestacy law on May XX, 2015, the
date the NH died. We find it likely that a Pennsylvania court would recognize the
Vermont civil union to allow the claimant to inherit as the “spouse” of the NH under
Pennsylvania intestacy statutes.
Pennsylvania intestacy law sets out a surviving spouse’s rights to a decedent’s estate.
20 Pa. Cons. Stat. Ann. § 2102 (West 2016). However, neither the intestacy statute
nor the case law defines the term “surviving spouse,” see 20 Pa. Cons. Stat. Ann. § 102 (West 2016) (definitions). There is no specific mention
of civil unions between same-sex couples and we have not located any case involving
inheritance by a civil union partner.
Although the provisions of the Pennsylvania intestacy statute do not define the term
“surviving spouse,” the Legislature amended its marriage laws in 1996 to define marriage
between a man and woman. See 23 Pa. Cons. Stat. Ann. § 1102 (“marriage” is a “civil contract by which one man
and one woman take each other for husband and wife”). The exclusion of same-sex couples
effectively limited the term “spouse” in the context of intestacy law to opposite-sex
relationships. 23 Pa. Cons. Stat. Ann. § 1102.
In addition to defining the term “marriage,” the Legislature specifically prohibited
recognition of same-sex marriages from other jurisdictions, stating:
It is hereby declared to be the strong and longstanding public policy of this Commonwealth
that marriage shall be between one man and one woman. A marriage between persons of
the same sex which was entered into in another state or foreign jurisdiction, even
if valid where entered into, shall be void in this Commonwealth.
23 Pa. Cons. Stat. Ann. § 1704. However, the statute did not include provisions regarding
civil unions between same-sex couples.[5]
Since then, two Pennsylvania courts interpreted that provision as applying to civil
unions as well. Relying on Section 1704, those courts declined to recognize a New
Jersey civil union between a same-sex couple, essentially reading the concept of civil
unions into Section 1704 and relying on that provision to bar recognition of the civil
union. See In Himmelberger v. Pennsylvania Department of Revenue, No. 610-286, 2011 Pa. Dist. & Cnty. Dec. LEXIS 565 (Pa. Ct. of Com. Pl., Berks County,
Orphans’ Court Div. Sept. 28, 2011).
However, on May 20, 2014, the U.S. District Court held that 23 Pa. Cons. Stat. Ann.
§§ 1102 and 1704 violated the Due Process and Equal Protection Clauses of the U.S.
Constitution and permanently enjoined enforcement of the provisions. Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014). “By virtue of this ruling,” the District Court
explained, “same-sex couples who seek to marry in Pennsylvania may do so, and already
married same-sex couples will be recognized as such in the Commonwealth.” Id. Pennsylvania did not appeal.
While the District Court holding in Whitewood did not specificially address civil unions, there is Pennsylvania case law recognizing
a civil union as the equivalent of marriage. See Himmelberger v. PA Dep’t of Revenue, No. 610-286, 2011 Pa. Dist. & Cnty. Dec. LEXIS 565, *13, *17 (Pa. Ct. of Com. Pl.,
Berks County, Orphans’ Court Div. Sept. 28, 2011) (finding a NJ civil union to be
the equivalent of marriage and applying 23 Pa. Cons. Stat. Ann. § 1704 void the marriage
qualities of the civil union and to prohibit the spousal tax rate from being applied
to the surviving partner of a NJ civil union). In that case, 23 Pa. Cons. Stat. Ann.
§ 1704 (later found unconstitutional) was applied to bar a surviving partner in a
NJ civil union from receiving the tax benefit of a spouse. Id. However, the court also opined that because “New Jersey gives civil union couples
the very same rights, benefits, burdens, and responsibilities in a marriage, except
the right to call themselves ‘spouses’ or ‘married’ [and] the civil union entered
into in New Jersey is the equivalent of a marriage . . . [and]’” Id. at *7-8. Accordingly, the court concluded that “New Jersey has legislated that a civil
union in that state is treated as — is the functional equivalent as — a marriage.”
Id. at *22. As a result, we believe that a Pennsylvania court would recognize a valid
out-of-state civil union that conveys the rights, benefits, burdens, and responsibilities
of marriage as a marriage.
Here, the civil union between the NH and the claimant was valid when it was entered
into and remained valid under Vermont law until the time of the NH’s death in 2015,
after the decision in Whitewood. Although Whitewood addressed a New Jersey civil union, as in New Jersey,[6] a Vermont civil union provides same-sex couples all of the same benefits, protections,
and responsibilities as Vermont grants to spouses in a civil marriage. See Vt. Stat. Ann. tit. 15, §§ 1201(2), 1204 (West 2016); see also Baker, 744 A.2d at 886 (finding a state constitutional obligation to extend to same-sex
couples the common benefit, protection, and security that Vermont law provides to
opposite-sex married couples).
In the absence of Pennsylvania case law specifically addressing a Vermont civil union,
we believe that a Pennsylvania court would find the Himmelberger case instructive and find that a Vermont civil union is also the functional equivalent
of marriage.
CONCLUSION
We believe that a Pennsylvania court would recognize a Vermont civil union as a relationship
conveying the same inheritance rights as a “spouse” to allow the claimant to inherit
from the NH under the Pennsylvania intestacy statutes. As a result, the agency can
deem the NH to have been the claimant’s spouse for purposes of determining entitlement
to benefits under Title II of the Social Security Act.
Respectfully,
Nora R. Koch
Acting Regional Chief Counsel, Region III
Tara A. Czekaj
Assistant Regional Counsel