QUESTION
PRESENTED
M1~, claimant, filed an application for widow(er)’s insurance benefits and the lump
sum death payment (LSDP) under Title II of the Social Security Act (Act) on the record
of the deceased number holder (NH) M2~, who died on December XX, 2022, domiciled in
Portugal.[1] The Claimant alleges an opposite-sex common-law marriage or de facto union with the
NH in Portugal that began in 2017 or 2019 and ended with the NH’s death in 2022. You
asked whether the Claimant is the NH’s widow(er) under the Act to determine her entitlement
to Title II benefits on the NH’s record.
SHORT
ANSWER
Applying section 216(h)(1)(A) of the Act, we believe there is legal support for the
agency to find that the Claimant is not the NH’s widow(er) for purposes of Title II
benefits. Because the NH was domiciled in Portugal and outside of the United States
when he died, the agency applies the law of the District of Columbia to determine
marital status between the NH and the Claimant for Title II benefits. See 42 U.S.C.
§ 416(h)(1)(A). First, we consider whether District of Columbia courts would find
the couple to be validly married. See 42 U.S.C. § 416(h)(1)(A)(i). The District of
Columbia follows the general rule that the validity of a marriage is determined by
the law of the jurisdiction where the marriage occurred. Here, there is no evidence
of a valid marriage under Portugal’s laws. The Claimant indicated that she and the
NH had a common-law marriage beginning in 2017, but Portugal does not recognize common-law
marriages under its laws. The Claimant also indicated that they entered into a de
facto union in 2019. Although Portugal does recognize de facto unions under its laws,
such unions are not equivalent to marriage.
Thus, applying Portugal’s laws, we believe District of Columbia courts would find
that the NH and the Claimant were not validly married at the time of his death. Next,
we consider whether District of Columbia courts would find that the Claimant could
inherit a spouse’s share under intestate succession law. See 42 U.S.C. § 416(h)(1)(A)(ii).
The District of Columbia follows the general conflict of law rule that the law of
the decedent’s domicile determines intestate inheritance rights. The NH was domiciled
in Portugal at the time of his death. Although the NH and the Claimant may have entered
into a de facto union and Portugal provides some rights to couples in a de facto union,
such a union does not confer the right to inheritance as a legal heir, including as
a surviving spouse, under Portugal’s inheritance laws. Thus, applying Portugal’s laws,
we believe District of Columbia courts would find that the Claimant could not inherit
a spouse’s share from the NH under intestate succession law based on a de facto union.
Accordingly, we believe there is legal support for the agency to find that the Claimant
is not the NH’s widow(er) for purposes of Title II benefits on the NH’s record.
BACKGROUND
The NH died December XX, 2022, domiciled in Portugal. The Claimant filed an application
for widow(er)’s insurance benefits and the LSDP on the NH’s record alleging that she
is the NH’s widow(er). It is our understanding that the Claimant does not allege and
has not presented evidence of a civil marriage under Portugal’s laws;[2] rather, she has described their relationship in Portugal using the terms stable union,
common-law marriage, or de facto union. She has alleged that their relationship began
in 2017 or 2019 and continued until the NH’s death in 2022. They lived together only
in Portugal. She provided some documents and statements to support her claim.
On a Portugal-USA Agreement on Social Security, dated January XX, 2023, the Claimant
filed a claim for survivor’s benefits on the NH’s record and reported a “Uniao de
Facto desde 01/XX/2019,” or de facto union since January XX, 2019. [1] See Marriage
in Portugal - U.S. Embassy & Consulate in Portugal (last visited November XX, 2024)
(describing the requirements for obtaining a marriage license from the Portuguese
Civil Registrar Office and stating that “[a]fter marriage, couples receive a marriage
certificate issued by the Portuguese Civil Registry,” which “is the official record
of the marriage”).
The Claimant completed a Social Security Declaration of De Facto Union Situation (Seguranca
Social Declaracao Situacao De Uniao De Facto) on August XX, 2023, in which she stated
that she lived with the NH in a situation of de facto union during the period of October
XX, 2017, to December XX, 2022.
A Translation Request reviewing a “Parish Board Certificate” dated August XX, 2023,
in Portuguese states: “Portuguese social security statement confirming that [the NH]
and [the Claimant] [we]re residing in the same address, by common-law marriage since
10/XX/2017 through his date of death 12/XX/2022.” The Translation Request notes that
several IRS, insurance, and utility bills show that they were residing at the same
address.
In the Form SSA-754 Statement of Marital Relationship completed in October 2023, the
Claimant alleges that she and the NH began living together as husband and wife in
Portugal on October XX, 2017, though they did not officially marry. They lived together
continuously in Portugal from October XX, 2017, until the NH’s death on December XX,
2022. They agreed that they wanted to live together in the same household and share
their lives and expenses and that they would live together until death. She reported
that they shared the same house, friends, and expenses. She reported that they had
joint bank accounts and were both named on utility bills. They introduced one another
as “my partner.”
There are seven witness statements on the Form SSA-753 Statement Regarding Marriage
completed by friends who reported that the NH and the Claimant were generally known
as a married couple and lived together in Portugal from 2017 until the NH’s death
in December 2022.
ANALYSIS
A.
Federal
Law: Status as a Widow(er) for Entitlement to Widow(er)’s Insurance Benefits and the
LSDP[3]
Under Title II of the Act, a claimant may be entitled to widow(er)’s insurance benefits
on a deceased insured individual’s account if, among other requirements, the claimant
is the widow(er) of the insured individual and their marriage relationship lasted
at least nine months before the insured individual died.[4] See 42 U.S.C. §§ 402(e), (f), 416(a)(2), (c), (g); 20 C.F.R. § 404.335. To be entitled
to the LSDP under Title II of the Act, a claimant must establish that the claimant
is the widow(er) of an individual who died fully or currently insured, and the claimant
was living in the same household as the insured at the time of the insured individual’s
death.[5] See 42 U.S.C. § 402(i); 20 C.F.R. §§ 404.390, 404.391.
As pertinent here, section 216(h)(1)(A) of the Act provides two methods for a claimant
to show status as a widow(er) of an insured who was domiciled outside the United States.[6] First, a claimant is the widow(er) of the 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 NH at the time the NH died, the claimant will
be deemed to be the insured’s widow(er) 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(er) 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.
In this case, the NH was domiciled in Portugal when he died. Therefore, the Claimant’s
status as the NH’s widow(er) will be evaluated under the laws of the District of Columbia.
B.
District
of Columbia Law: Valid Marriage or Inheritance of a Spouse’s Share under Intestate
Succession Law
1.
District
of Columbia Courts Would Find that the Claimant and the NH Were Not Validly Married
under
Portugal’s Laws
The District of Columbia follows the general rule that the validity of the marriage
is determined by the law of the jurisdiction where the marriage occurred. See Gill
v. Nostrand, 206 A.3d 869, 875 n. 4 (D.C. 2019) (recognizing a “ceremonial marriage
in Brazil as a matter of comity”); Cerovic v. Stojkov, 134 A.3d 766, 778 (D.C. 2016)
(in a divorce action, applying Serbian law to determine marital status for purposes
of equitable distribution of marital property under D.C. law); Bansda v. Wheeler,
995 A.2d 189, 198 (D.C. 2010) (in a divorce action, applying Dutch law to determine
marital status for purposes of equitable distribution of marital property under D.C.
law); see also McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951) (in an annulment
action for a marriage contracted in Virginia, applying Virginia law); Hitchens v.
Hitchens, 47 F. Supp. 73 (D.D.C. 1942) (in an annulment action for a marriage contracted
in Maryland, applying Maryland law). Here, the NH died domiciled in Portugal in December
2022. The Claimant alleges a common-law marriage or de facto union with the NH in
Portugal that began in 2017 or 2019 and ended with the NH’s death in 2022. They have
only lived together in Portugal. We must determine whether District of Columbia courts
would find that the Claimant had a valid marriage with the NH.
Although the Claimant alleges that she and the NH had a common-law marriage, Portugal
does not recognize common-law marriage under its laws.[7] She has also indicated that they had a de facto union. Under Portugal’s Law No. 7
of May 11, 2001, de facto unions are recognized and convey some rights.[8] A de facto union is defined in Portugal’s laws as the legal situation of two people
who, regardless of gender, have lived in conditions like those of married couples
for more than two years.[9] A de facto union is not the equivalent of a marriage under Portugal’s laws and conveys
only some rights, addressed next.
Therefore, we believe that District of Columbia courts would find that the Claimant
has not established a valid marriage with the NH under Portugal’s laws. Thus, there
is legal support for the agency to find that the Claimant is not the NH’s widow(er)
under section 216(h)(1)(A)(i) for Title II benefits. See 42 U.S.C § 416(h)(1)(A)(i);
20 C.F.R. § 404.345.
Because the Claimant was not validly married to the NH, the next question is whether
the Claimant could inherit a spouse’s share from the NH under District of Columbia
intestate succession law. See 42 U.S.C § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.
2.
District
of Columbia Courts Would Find that the Claimant Could Not Inherit a Spouse’s Share
from
the NH under Portugal’s Laws
The District of Columbia follows the general conflict of law rule that the law of
the decedent’s domicile determines intestate inheritance rights. See Javier v. Comm’r
of Soc. Sec., 407 F.3d 1244, 1247 (D.C. Cir. 2005) (citing In re Gray’s Estate, 168
F. Supp. 124, 126 (D.D.C. 1958) (in deciding whether Maryland law, where the adoption
occurred, or District of Columbia law, where the decedent was domiciled when she died,
applied for purposes of determining the right of an adopted child to inherit, the
court noted that the general rule is that “the law of the domicile of decedent governs
distribution of personal property and the law of the situs of real estate governs
its descent”)); Restatement (Second) of Conflict of Laws § 260 Intestate Succession
to Movables (March 2023 Update). As the NH’s domicile at the time of death was Portugal,
we consider whether the Claimant has established a relationship with the NH under
the law of Portugal that would afford the Claimant the right to inherit a spouse’s
share under Portugal’s intestate succession laws.
As noted above, Portugal affords legal recognition to de facto unions.[10] A de facto union is defined in Portugal’s laws as the legal situation of two people
who, regardless of gender, have lived in conditions like those of married couples
for more than two years.[11] A de facto union can be proven by any legally admissible means, including a declaration
issued by the competent parish council.[12]
Persons living in a de facto union are entitled to certain rights per the law.[13] Of relevance here, with regard to whether a partner in a de facto union has the right
to inherit a spouse’s share under intestate succession law, Article 3 of Law No. 1
of May 11, 2001 lists the rights of couples living in a de facto union and the right
to inherit is not listed.[14]
Furthermore, according to article 2131 of the Portuguese Civil Code, if the deceased
has not validly and effectively disposed of, in whole or in part, the assets that
he could dispose of after his death, his legitimate heirs are called to the succession
of those assets.[15] Article 2132 of the Civil Code determines that a deceased’s legitimate heirs are
the spouse, relatives, and the State, in that order and according to the rules contained
in Title II of the Civil Code.[16] Article 2133 of the Civil Code states that the order in which heirs are called is
as follows: (a) spouse and descendants; (b) spouse and ascendants; (c) siblings and
their descendants; (d) other collaterals up to the fourth degree; (e) State. [17] Thus, a partner in a de facto union is not considered a legal heir under the Portuguese
Civil Code for inheritance purposes.
In summary, a de facto union is a legally recognized relationship under Portugal’s
laws, but it is not a marriage. Further, couples living in a de facto union have some
rights, but they do not have all of the same rights as married couples. Of particular
relevance here, couples living in a de facto union do not have the right to inherit
as a legal heir under Portugal’s laws.
Therefore, we believe that District of Columbia courts would find that the Claimant
has not established the right to inherit a spouse’s share from the NH under Portugal’s
laws based on a de facto union. Thus, there is legal support for the agency to find
that the Claimant is not the NH’s widow(er) under section 216(h)(1)(A)(ii) for Title
II benefits. See 42 U.S.C § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.
CONCLUSION
Applying section 216(h)(1)(A) of the Act, we believe District of Columbia courts would
find that the Claimant and the NH were not validly married under Portugal’s laws and
that the Claimant does not have the right to inherit a spouse’s share under Portugal’s
intestate succession laws. Accordingly, we believe there is legal support for the
agency to find that the Claimant is not the NH’s widow(er) for Title II benefits on
the NH’s record.