TN 19 (12-23)

PR 03130.146 Guatemala

A. PR 22-058 Validity of de facto union under the law of Guatemala-DEATH CASE

Date: April 18, 2017

1. Syllabus

Can the agency deem B~, the claimant, to be the widow of A~, the number holder (NH), for Title II benefit purposes when they lived in a non-marital relationship for several years in Guatemala?

2. Opinion

The agency cannot deem the claimant to be the widow of NH for Title II benefit purposes. The claimant and NH’s long-term relationship did not meet the requirements of a de facto union in Guatemala and thus the agency cannot deem it as a marriage under the Social Security Act (Act). Additionally, although the couple was legally married, the marriage did not meet the nine-month durational requirement.

Background

The claimant and NH began living together as a couple in Guatemala City on August XX, 1984. They were legally married on May XX, 2010 in Guatemala.

The NH died of natural causes on September XX, 2010 and in March 2014, the claimant applied for widow’s benefits on the NH’s record.

Analysis

Our discussion of the law of Guatemala is based in part on information we received from the Library of Congress. To be entitled to widow’s insurance benefits under the Act, a claimant must show, among other things, that she is the “widow” of an insured. 42 U.S.C. § 402(e)(1). As pertinent here, the Act provides two methods for a claimant to show she is the widow of an insured who was domiciled outside the United States.[1] First, a claimant is the widow of such insured if the courts of the District of Columbia would find that the claimant was validly married to the insured at the time the insured died. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, if the claimant was not validly married to such insured at the time the insured died, the claimant will be deemed to be the insured’s widow if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a widow of the insured with respect to the taking of such property. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

The claimant and NH were validly married, but the marriage did not meet the nine-month durational requirement.

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.[2] 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).

Here, the claimant and the NH were legally married in Guatemala on May XX, 2010. However, the NH died in September 2010. Because the marriage did not last at least nine months before the insured died as required under Sections 216(c), 216(g) of the Act; 20 C.F.R. § 404.335, the claimant is not entitled to Title II widow’s benefits on the record of the NH.

The Claimant Does Not Have the Same Status as a Widow of the NH under the Intestacy Law of Guatemala.

Since the claimant was not married for at least nine months, the agency can deem the claimant to be the NH’s widow 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 widow of the NH with respect to the taking of such property. 42 U.S.C § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

Under District of Columbia law, the law of the decedent’s domicile determines intestate inheritance rights. 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 was domiciled in Guatemala at the time of death. Guatemala is not a common law country, so the term “common law marriage” is not used there. Instead, Guatemala recognizes a de facto union. The Civil Code states that a de facto union between a man and a woman who have the capacity to marry will have legal effect upon their declaration before the mayor of the place where they reside or a notary public, provided that a home exists and their life in common has been continually maintained for more than three years in the eyes of their relatives and social relations.[3] Voluntary declaration must be set forth in a special legal document known as an “act” issued by the mayor or notary, or in a public instrument. The parties must state under oath their names and surnames, place and date of birth, domicile and residence, profession or trade, date when the de facto union started, names and ages of their children, and the property acquired during their life in common.[4]

A party to the union may also request that the court recognize a de facto union because the other party has died. In this instance, the court declares the existence of a de facto union, if it has been fully proved, and specifies in the declaration the date or probable date on which the union began and the possessions that were acquired by the parties during the union. The certification of a court decision favorable to the requesting party must be presented for registration to the Civil Registry and to the Property Registry if there is any real property.[5] In a de facto union, the man and woman mutually inherit under the laws of intestate succession under the same terms provided by the Code for spouses.[6]

In the instant case, the NH and claimant lived together beginning in August 1984 and did not have a legal marriage until May 2010. In September 2010, the NH passed away. Although the claimant and NH lived together as a couple, there is no indication that they entered into a de facto union. The third party statements confirm a long-term relationship between the claimant and the NH, but they do not confirm that a registered de facto union existed. Since there does not appear to be a registered de facto union, the claimant cannot be treated as a spouse between August 1984 and May 2010 pursuant to Guatemala’s Civil Code. Even though the NH is deceased, the claimant may still be able to request that the court recognize the existence of a de facto union. However, it does not appear that the claimant has taken such action. Accordingly, we cannot find that the claimant and NH were in a de facto union. As a result, the claimant cannot inherit like a spouse and therefore does not have the same status as a widow of the NH for purposes of obtaining widow’s benefits.

Conclusion

Although the claimant and the NH were in a valid marriage it did not meet the nine-month durational requirement. Additionally, the claimant and the NH’s long-term relationship prior to their legal marriage does not entitle the claimant to the same intestate succession rights as a widow of the NH under the law of Guatemala. Thus, the agency cannot deem the couple married for title II purposes.


Footnotes:

[1]

In determining the claimant’s relationship as the insured’s spouse, the agency looks to the law of the state where the insured had a permanent home at the time the claimant applied for benefits. See 42 U.S.C. § 416(h)(1)(A)(i). If the insured was not domiciled in any state, the agency applies the law of the District of Columbia. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345; POMS GN 00210.006(B)(2).a.

[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). The recognition of heterosexual unions performed in other jurisdictions does not appear to violate a strong public policy of the District.

[3]

CÓDIGO CIVIL, Decreto Ley No. 106, Sept. 14, 1963, art. 173, DIARIO OFICIAL, EL GUATEMALTECO, Oct. 7–Dec. 11, 1963, available as as amended at http://biblio3.url.edu.gt/Libros/2011/codigo.pdf, archived at https://perma.cc/C6AM-R8Y6.

[4]

Id. art. 174.

[5]

Id. art. 178.

[6]

Id. art. 184.


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PR 03130.146 - Guatemala - 12/04/2023
Batch run: 12/04/2023
Rev:12/04/2023