BASIC (05-16)

PR 03107.262 Netherlands

A. PR 16-094 A~’s Entitlement to Spouse’s Insurance Benefits Based on Her Relationship with J~ —Applying Netherlands Law

Date: March 11, 2016

1. Syllabus

The claimant applied for spousal benefits and alleged living with the NH in a common-law marriage in the Netherlands continuously from 1992 until 1999 when they entered into a Domestic Partnership Agreement. The Domestic Partnership Agreement provides that the agreement will terminate if the parties enter a marriage or registered partnership. This strongly evidences that the relationship created by the Domestic Partnership Agreement was neither a marriage nor a registered partnership. Thus, the claimant is not validly married to the NH under Netherlands law. Nor does that law give the claimant the same status as a legally married spouse of the NH for purposes of intestate inheritance.

2. Opinion

I. Issue

A~ (claimant) applied for spouse’s insurance benefits on the earnings record of J~, the insured number holder (NH). The claimant alleges they began living together in a “common law marriage” in the Netherlands in 1992, and have continuously lived together since that time. On May XX, 1999, the claimant and the NH entered into a Domestic Partnership Agreement setting forth their mutual rights and obligations as a couple. Is the claimant the NH’s spouse for purposes of determining her entitlement to spouse’s insurance benefits under title II of the Social Security Act?

II. Short Answer

No. The claimant’s relationship to the NH would not be recognized as a valid marriage under Netherlands law. Nor does that law give the claimant the same status as a legally married spouse of the NH for purposes of intestate inheritance.

III. Factual Background

The claimant, a female, alleges she lived together with the NH, a male, in a “common law marriage” in the Netherlands. The terms of their cohabitation are spelled out in a Domestic Partnership Agreement (Agreement) dated May XX, 1999. The Agreement states, in part, that the claimant and the NH “are in a committed relationship, that they have been living together since August XX 1992, and that they have been managing a household together since that time. Agreement, p. 11. Significantly, after naming the parties to the agreement, the Agreement expressly states that they are “both unmarried and not registered partners.” Id. (emphasis added). The Agreement then provides a detailed specification of property rights of the claimant and the NH. Id. at pp. 12-20. The agreement provides for termination of the relationship as follows:

a. through one party withdrawing, at the moment in which the party withdraws. The contract is terminated by one party sending a registered letter to the other party, in which a minimum notice of one month must be observed.

b. by the death of one of the parties, or by one of the parties receiving a final and conclusive declaration of bankruptcy.

c. through marriage or registered domestic partnership.

d. . . . .

Agreement, pp. 12-13 (emphasis added). The claimant applied for spouse’s insurance benefits on the NH’s record on July XX, 2014.

IV. Discussion1

To be entitled to spouse’s insurance benefits under title II of the Social Security Act (Act), a claimant must show, among other things, that they are the “spouse” of an individual entitled to old-age or disability insurance benefits. See Act § 202(b)-(c), 216(a)(1). As pertinent here, the Act provides two methods for a claimant to show they are the spouse of an insured individual.

First, a claimant is the spouse of an insured individual if the claimant was validly married to the insured individual at the time the claimant applied for benefits. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, even if the claimant was not validly married to the insured individual at the time the claimant applied for benefits, the claimant will be deemed to be the insured individual’s spouse if the claimant would have the same status as a spouse of the insured individual with respect to the inheritance of the insured individual’s intestate personal property. See Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

In determining whether a claimant qualifies as a spouse of an insured individual, the agency applies the law of the State where the insured individual was domiciled at the time the claimant applied for benefits. See Act § 216(h)(1)(A); 20 C.F.R. § 404.345. If the insured individual was not domiciled in any State at that time, the agency applies the law of the District of Columbia. See Act § 216(h)(1)(A); 20 C.F.R. § 404.345.

The claimant bears the burden of proving they are entitled to benefits as the insured individual’s spouse. 20 C.F.R. §§ 404.345, 404.704, 404.723, 404.725.

A. The Claimant Was Not Validly Married to the NH under Netherlands Law.

Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946).2 Here, the claimant alleges she lived together with the NH in a “common law marriage” in the Netherlands. We therefore consider whether the claimant and the NH were validly married under Netherlands law.

Netherlands law recognizes three types of union between two persons of the same or opposite sex: a “marriage,” a “registered partnership,” or a “cohabitation agreement.” The rules defining marriage are contained in book 1 of the Civil Code. See Bk. 1, Tit. 1.5, Law of Persons & Family Law, DUTCH CIVIL CODE (in effect on Jan. 1, 1970, as updated to Feb. 4, 2014), http://www.dutchcivillaw.com/civilcodebook01.htm, archived at http://perma.cc/F6UM-8A8V, Boek 1 [Book 1] [BURGERLUK WETBOEK] [BW] [CIVIL CODE], as amended, http://wetten.overheid.nl/BWBR0002656/Boek1/geldigheidsdatum_19-11-2015, archived at http://perma.cc/YM3P-AYPR (last visited Mar. 8, 2016). The Civil Code prescribes numerous formalities and procedures that must be observed before a certificate of marriage will be issued. See id.

Registered partnerships are governed by title 1.5A of book 1 of the Civil Code. See supra. Like a marriage, a registered partnership comes into being only if the parties observe statutorily prescribed formalities and procedures, many of which are the same as those required for marriage. See supra.

A cohabitation agreement, unlike a marriage or registered partnership, is governed by general contract law. Marriage, Registered Partnerships and Cohabitation Agreements, GOVERNMENT.JL, https://www.government.nl/topics/family-law/contents/marriage-registered-partnership-and-cohabitation-agreements, archived at http://perma.cc/547B-FLZ4 (last visited Mar. 8, 2016). No legislative provisions specifically regulate cohabitation contracts. See id.

In the claim at issue, there are no allegations or evidence that the claimant and the NH followed the necessary procedures to become married under the Civil Code. Indeed, the parties’ Domestic Partnership Agreement provides that the agreement will terminate if the parties enter a marriage or registered partnership. See supra. This strongly evidences that the relationship created by the Domestic Partnership Agreement was neither a marriage nor a registered partnership. Thus, the claimant is not validly married to the NH under Netherlands law. Accordingly, the claimant cannot qualify as the NH’s spouse on the basis of a valid marriage. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345.

B. The Claimant Does Not Have the Same Status as a Spouse of the NH under Netherlands Intestacy Law.

Even if the claimant was not validly married to NH, she will be deemed to be the NH’s spouse if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, she has the “same status” as a spouse of the NH with respect to the taking of such property. See Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). Here, the NH is domiciled in the Netherlands. Accordingly, to determine whether the claimant has the requisite status with respect to inheritance of the NH’s intestate property, we apply Netherlands law.

As discussed above, Netherlands recognizes three kinds of relationships between people of the same or opposite sex: a marriage, a registered partnership, or a cohabitation agreement. Marriages and registered partnerships convey essentially identical rights, including the same status with respect to the inheritance of intestate personal property. Indeed, the Civil Code equates “registered partners” with “spouses” under its provisions on intestate succession. Bk. 4, Law of Succession, art. 4.8(1) DCC, http://www.dutchcivillaw.com/civilcodebook44.htm (as in effect on Feb. 4, 2014), archived at http://perma.cc/LLX7-99PN; THE CIVIL CODE OF THE NETHERLANDS, BOEK 4 BW, as amended, http://wetten.overheid.nl/BWBR0002761/Boek4/geldigheidsdatum_13-11-2015, archived at http://perma.cc/Z2ZS-QTX4 (last visited Mar. 8, 2016). Partners to a cohabitation agreement, however, do not enjoy the same status as spouses or registered partners for purposes of intestate inheritance. Instead, such couples have inheritance rights only to the extent set forth in the cohabitation agreement. Trouwen, samenlevingscontract en geregistreerd partnerschap [Marriage, Cohabitation, and Registered Partnership], RIJKSOVERHEID, https://www.rijksoverheid.nl/onderwerpen/trouwen-samenlevingscontract-en-geregistreerd-partnerschap/vraag-en-antwoord/samenlevingscontract-afsluiten, archived at http://perma.cc/WYC4-HLHU (last visited Mar. 8, 2016).

As discussed above, it appears clear in this case that the claimant and the NH entered into cohabitation agreement, rather than a marriage or registered partnership. There are no allegations or evidence that the parties followed the procedures required to enter a marriage or registered partnership. Further, their Domestic Partnership Agreement explicitly states that the agreement would terminate if they eventually entered into a marriage or registered partnership. See supra. Since parties to a cohabitation agreement do not have the same rights as a married partners with regard to intestate inheritance, the claimant does not have the same status as a spouse of the NH for purposes of intestate inheritance. Accordingly, the claimant cannot be deemed to be the NH’s spouse based on inheritance rights.

V. Conclusion

The claimant does not qualify as the NH’s spouse for purposes of determining her entitlement to spouse’s insurance benefits. First, the claimant’s relationship with the NH would not be recognized as a valid marriage under Netherlands law. Second, the claimant does not have the same status as a spouse of the NH for purposes of intestate inheritance.


Footnotes:

[1]

. We note that our discussion of the law of the Netherlands is based in part on an opinion we received from the Library of Congress.

[2]

. The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942). In this case, it does not appear that recognition of a marriage between the claimant and the NH would violate a strong public policy of the District.


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PR 03107.262 - Netherlands - 05/17/2016
Batch run: 05/17/2016
Rev:05/17/2016