QUESTION PRESENTED
You asked whether C~ (claimant) is entitled to widower’s benefits and a lump-sum death
payment (LSDP) on the record of the deceased number holder (NH), J~, based on a California
domestic partnership. The NH was domiciled in Indiana when he died.
SHORT ANSWER
Yes. We believe that the Indiana courts would recognize a California domestic partnership
as a relationship conveying the same inheritance rights as a “spouse.” Therefore,
the agency could deem the couple as married for purposes of determining the claimant’s
entitlement to benefits under Title II of the Social Security Act (Act)
SUMMARY OF EVIDENCE
The claimant and the NH entered into a domestic partnership in California on November
XX, 2002. They lived in California until approximately June 2013, after which they
moved to Indiana. The NH was domiciled in Indiana when he died on March XX, 2015.
The claimant sought payment of surviving spouse benefits and a LDSP shortly thereafter.
APPLICABLE LAW
To be entitled to survivor’s benefits under Title II of the Act, a claimant must,
among other things[1] , establish that she or he is the widow or widower of an individual who died fully
insured. See 42 U.S.C. § 402(e),(f), 416(c)(1),(g)(1); 20 C.F.R. § 404.335. To be entitled to
the LSDP under Title II of the Act, a claimant must establish that she or he is the
widow or widower of an individual who died fully or currently insured, and was living
in the same household as the insured at the time of his or her death. See 42 U.S.C. §§ 402(i), 416(c); 20 C.F.R. § 404.390. The agency will find a claimant
to be the widow or widower of an insured individual if the courts of the State in
which the insured individual resided at the time of his or her death would find that
the claimant was validly married to the insured individual when the death occurred.
42 U.S.C. § 416(h)(1)(A)(i).
In addition, the agency uses the term “NMLR” to describe a variety of legal relationships
for two individuals who are not considered married, but are provided with some or
all of the rights that could be associated with a marriage. POMS GN 00210.004. The claimant and the number holder had an NMLR by virtue of registering a domestic
partnership in California. Id. The agency will consider a claimant to be a NH’s spouse for benefit purposes when
the state of the NH’s domicile would allow the claimant to inherit a spouse’s share
of the NH’s personal property should the NH die without leaving a will. 42 U.S.C §
416(h)(1)(A)(ii); 20 C.F.R. § 404.345.
California law allows two adults of the same sex to register a domestic partnership
with the Secretary of State. Cal. Family Code § 297(a)-(b). Registered domestic partners
have “the same rights, protections, and benefits . . . as are granted to and imposed
upon spouses.” Cal. Family Code § 297.5(a). “A surviving registered domestic partner,
following the death of the other partner, shall have the same rights, protections,
and benefits . . . as are granted to and imposed on a widow or a widower.” Cal. Family
Code § 297.5(c). Thus, a domestic partner inherits a spousal share when the other
partner dies without a will. Cal. Probate Code § 6401 (intestate share of surviving
spouse); POMS GN 00210.004(D).
Indiana does not have a domestic partnership or civil union statute. POMS GN 00210.004(D). The Indiana Code once provided that “[a] marriage between persons of the same
gender is void in Indiana even if the marriage is lawful in the place where it is
solemnized.” Ind. Code § 31-11-1-1(b). However, this provision was held unconstitutional
and Indiana has permitted same-sex marriage since October 2014. See Baskin v. Bogan, 12 F. Supp. 3d 1144, 1162 (S.D. Ind. 2014), aff’d, 766 F.3d 648 (7th Cir. 2014), cert.
denied, 135 S. Ct. 316 (2014).
ANALYSIS
As stated above, the agency will consider a claimant to be a NH’s spouse for benefit
purposes when the courts of the state of the NH’s domicile would allow the claimant
to inherit a spouse’s share of the NH’s personal property should the NH die without
leaving a will. 42 U.S.C § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. Here, since the
NH was domiciled in Indiana at the time of his death, we look to the laws of Indiana
to determine the claimant’s relationship as the NH’s widower. And since the claimant
and the NH entered into a domestic partnership in California, it is necessary to determine
whether Indiana would allow the claimant to inherit as the NH’s spouse based on their
California domestic partnership.
Based on our review of Indiana and California law, we believe it is likely that Indiana
would recognize the inheritance rights of domestic partners conferred by California’s
domestic partnership law, which includes the right to inherit a spousal share when
a person dies intestate. See Cal. Family Code § 297.5(c); Cal. Probate Code § 6401. The Court of Appeals of Indiana,
in a case involving the termination of a California registered domestic partnership
(RDP), affirmed the trial court’s recognition of the California RDP on comity grounds.
Gardenour v. Bondelie, 60 N.E.3d 1109, 1117 (Ind. Ct. App. 2016), transfer
denied[2] , 83 N.E.3d 1218 (Ind. 2017) (citing Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App. 2002)). While the Gardenour court concerned the parental rights and obligations of registered domestic partners
under Cal. Family Code § 297.5(d), the court applied its reasoning generally to all
of the rights and obligations set forth in Cal. Family Code § 297.5. Gardenour, 60 N.E.3d at 1116-1117. Thus, the reasoning in Gardenour is readily applicable to a domestic partner’s right to inherit a spousal share under
Cal. Family Code § 297.5(c).
The appellate court in Gardenour found no error in the trial court’s determination that the “couple’s RDP was the equivalent
of marriage.” Id. at 1117; see also id. at 1118 (“California law makes clear a RDP is identical to marriage”). In so holding,
the court rejected as “outdated” the claim that “recognition of a same-sex marriage
is contrary to Indiana public policy,” given recent federal jurisprudence regarding
same-sex marriage. Id. at 1117-18 (citing Obergefell v.
Hodges , 135 S. Ct. 2584, 2608 (2015); Baskin , 766 F.3d at 657). Significantly, the appellate court noted that Ind. Code § 31-11-1-1(b)[3] , which stated a same-sex marriage is void in Indiana even if lawful in the state
where it is celebrated, was struck down as unconstitutional. Gardenour, 60 N.E.3d at 1118. The appellate court also reasoned that a refusal to “recognize
California RDPs as the equivalent of marriage” could “allow individuals to escape
the obligations California imposes upon domestic partners.” Id.
In the instant case, we believe that Indiana courts would likely find, consistent
with Gardenour, that the claimant’s California RDP was the equivalent of marriage and that it would
recognize the RDP as a spousal relationship under the principle of comity. The Gardenour court explicitly held that recognizing same-sex marriage was not against Indiana
public policy.
Id. at 1117-18. Thus, we believe that Indiana would give effect to the California domestic
partnership and allow the claimant to inherit a spousal share.
CONCLUSION
The claimant and the NH had a valid California domestic partnership which gave the
claimant the same rights as a widower under California law. Given the appellate court’s
holding in Gardenour, we believe the courts of Indiana likely would recognize the claimant’s California
domestic partnership and give effect to the spousal inheritance rights afforded by
California law to registered domestic partners. Thus we believe the agency could find
Claimant to be the NH’s spouse for purposes of determining the claimant’s entitlement
to benefits under Title II of the Act..