Louisiana does not authorize domestic partnerships or other comparable non-marital legal relationships under State statutory law.

We have found no binding authority in Louisiana case law or statutory law that would require a Louisiana court to find an out-of-state non-marital legal relationship to be the equivalent of marriage and partners to such a non-marital legal relationship the equivalent of spouses for intestate succession inheritance purposes.

For purposes of her application for widow(er)’s insurance benefits and the lump sum death payment (LSDP) under Title II of the Social Security Act (Act), you asked whether C~ (Claimant) is the surviving spouse, or widow, of the deceased number holder (NH) L~, who died on October XX, 2022, domiciled in Louisiana. The Claimant and the NH entered into a California opposite-sex domestic partnership in 2008, but never married.

We believe Louisiana courts would find that as of the NH’s death on October XX, 2022, the Claimant could not inherit a spouse’s share from the NH under Louisiana intestate succession law based on the couple’s California opposite-sex domestic partnership. Accordingly, we believe there is legal support for the agency to conclude that the Claimant is not the NH’s widow for purposes of her application for widow’s insurance benefits and the LSDP on the NH’s record.

The NH died on October XX, 2022, domiciled in Louisiana.^[1] On November XX, 2022, the Claimant filed an application for Title II benefits as the NH’s surviving spouse, or widow. On the application, she stated that she and the NH entered into a California domestic partnership on July XX, 2008, in Los Angeles County, California. She provided the filed California Declaration of Domestic Partnership. At the time of their domestic partnership, the couple lived in California and the NH was over the age 62 and entitled to retirement insurance benefits. It is our understanding that they never married. ^[2]

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 record 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.    

The agency will find a claimant to be an insured individual’s widow(er) if the courts of the State in which the insured individual was domiciled at the time of death would find that the claimant and the insured individual were validly married at the time the insured individual died, or if, under application of that State’s intestate succession laws, the claimant would be able to inherit a spouse’s share of the insured individual’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. It is our understanding that the NH was domiciled in Louisiana when the NH died on October XX, 2022. Therefore, we look to Louisiana law to determine if the Claimant is the NH’s widow.  

There is no claim or evidence of a valid marriage between the NH and the Claimant; rather, there is only evidence of their California opposite-sex domestic partnership. Following section 216(h)(1)(A)(ii) of the Act, the agency will treat a couple’s non-marital legal relationship (such as a civil union, domestic partnership, or reciprocal beneficiary relationship) as a marital relationship and consider a claimant to be the NH’s widow(er) for Title II benefit purposes if the State of the NH’s domicile would allow the claimant to inherit a spouse’s share of the NH’s personal property if the NH died without leaving a will. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345; see also POMS GN 00305.005A (non-marital legal relationships can be treated as marital relationships for Title II benefit purposes). Therefore, we consider whether the Claimant could inherit a spouse’s share under Louisiana intestate succession law based on the couple’s California domestic partnership at the time of the NH’s death on October XX, 2022, in order to determine the Claimant’s status as the NH’s widow under the Act. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.  

b. State Law: No Right to Inherit a Spouse’s Share under Louisiana Intestate Succession Law Based on a California Domestic Partnership  

1.  California Law: The Couple’s California Domestic Partnership is Valid in California

First, we consider whether the California opposite-sex domestic partnership that the Claimant and the NH entered into in July 2008, was valid in California, the State in which it was established.  

California has permitted the establishment of domestic partnerships since 2000. See 1999 Cal. Legis. Serv. Ch. 588 (A.B. 26); see also Cal Fam. Code §§ 297 – 299.6 (current statutory law regarding the establishment of domestic partnerships); In re Marriage Cases, 183 P.3d 384, 413-418 (Cal. 2008) (reviewing the legislative history of California’s domestic partnership laws); POMS GN 00210.004D.5 (listing California as permitting domestic partnerships that provide for inheritance rights effective January 1, 2000). Under California law in effect when the Claimant and the NH established their domestic partnership in July 2008, two people could establish a domestic partnership if they filed a declaration of domestic partnership with the California Secretary of State and met all of the following criteria:  

(1) Both persons have a common residence;

(2) Neither person has an ongoing marriage or domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity;

(3) The two persons are not related by blood in a way that would prevent them from being married to each other in California;

(4) Both persons are at least 18 years of age;

(5) Either of the following: (A) Both persons are members of the same sex; or (B) One or both persons are over the age of 62 and meet the eligibility requirements for old-age Social Security insurance benefits; and

(6) Both persons are capable of consenting to the domestic partnership.  

Cal. Fam. Code § 297 (effective Jan. 1, 2005, to Dec. 31, 2011); see also Cal. Fam. Code Ann. § 298.5 (effective Jan. 1, 2008, to Dec. 31, 2019) (“Two persons desiring to become domestic partners may complete and file a Declaration of Domestic Partnership with the Secretary of State,” who registers the declaration in a domestic partnership registry and returns a copy of the registered Declaration of Domestic Partnership and a Certificate of Registered Domestic Partnership to the domestic partners).   

Although the initial legislation providing for domestic partnerships afforded only limited substantive rights, in 2002 and 2003, California passed legislation expanding the rights of domestic partners to afford them the same rights and benefits shared by spouses, including the right to inherit intestate from one another, and these rights applied to those who registered their domestic partnerships under prior California law.^[6] See In re Marriage Cases, 183 P.3d at 413-415; 1999 Cal. Legis. Serv. Ch. 588 (A.B. 26); 2002 Cal. Legis. Serv. Ch. 447 (A.B. 2216); 2003 Cal. Legis. Serv. Ch. 421 (A.B. 205); Cal. Fam. Code § 297.5. Members of a California domestic partnership have the same rights, protections and benefits as are granted to spouses. Cal. Fam. Code § 297.5(a). Moreover, a surviving registered domestic partner shall have the same rights as a widow or widower, including the right to inherit under intestate succession law. Cal. Fam. Code § 297.5(c).  

As evidenced by a California Declaration of Domestic Partnership, signed and notarized by the Claimant and the NH on July XX, 2008, and filed with the California Secretary of State on July XX, 2008, the Claimant and the NH registered their domestic partnership with the California Secretary of State. Their domestic partnership appears to have met the requirements for establishing a valid domestic partnership under California law. See Cal. Fam. Code §§ 297, 298.5. Thus, the NH and the Claimant established a valid California domestic partnership upon the filing of the Declaration of Domestic Partnership with the Secretary of State on July XX, 2008. See Cal. Fam. Code § 297(b) (effective Jan. 1, 2005, to Dec. 31, 2011); see also Burnham v. Public Employees’ Retirement System, 146 Cal. Rptr. 3d 607, 612-613 (Cal. Ct. App. 2012) (noting that merely signing and notarizing the declaration of domestic partnership did not satisfy the law requiring that the parties file the declaration; rather, there are two steps to filing a declaration of domestic partnership under section 297: first, the parties relinquish control of the declaration, and second, the clerk receives the declaration and files it). ^[7]  

2. Louisiana Law: No Right to Inherit a Spouse’s Share under Louisiana Intestate Succession Law based on the California Domestic Partnership

As the NH was domiciled in Louisiana when he died, per section 216(h)(1)(A)(ii) of the Act, we must next consider whether the Claimant could inherit a spouse’s share from the NH under Louisiana intestate succession law based upon this California domestic partnership.  

Under Louisiana law, rights of inheritance, including marital rights of inheritance, are recognized and governed by statute. Louisiana intestate succession law provides that when a person dies without valid testamentary disposition, “the undisposed property of the deceased devolves by operation of law in favor of his descendants, ascendants, and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him.”  La. Civ. Code Ann. art. 880; see also La. Civ. Code Ann. art. 889 (“If the deceased leaves no descendants, his surviving spouse succeeds to his share of the community property.”), art. 894 (“If the deceased leaves neither descendants, nor parents, nor brothers, sisters, or descendants from them, his spouse not judicially separated from him shall succeed to his separate property to the exclusion of other ascendants and other collaterals.”). As there is no marriage, we must determine whether Louisiana would recognize the Claimant as the NH’s “spouse” for purposes of Louisiana intestate succession law based on the couple’s California domestic partnership.  

Louisiana’s intestate succession statutes do not define “surviving spouse.” See La. Civ. Code Ann. arts. 880-901. “It is well established that the task of statutory construction begins with an examination of the language of the statute itself. When the law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be in search of the intent of the legislature.” State v. Barbier, 743 So.2d 1236, 1238 (La. 1999); see also La. Civ. Code Ann. arts. 9-13 (the Civil Code’s rules of statutory construction). The plain, clear, unambiguous text of the statutory provision of the intestate succession law regarding inheritance of a “spouse not judicially separated from him” and “surviving spouse” indicates that it is limited to legal spouses in a marriage. Louisiana case law indicates that there must be a marriage to qualify as a spouse for inheritance purposes. See Schwegmann v. Schwegmann, 441 So.2d 316, 324 (La. Ct. App. 1983) (under Louisiana law, “unmarried cohabitation does not give rise to property rights analogous to or similar to those of married couples”); Succession of Donohue, 389 So.2d 879, 880 (La. Ct. App. 1980) (“marriage is the only means by which one can become a spouse in community.”). In considering whether a decedent’s estranged husband qualified as the decedent’s “surviving spouse” under the Louisiana wrongful death statute, a Louisiana court, citing Black’s Law Dictionary, stated that “[t]he legal and ordinary meaning of the word ‘spouse’ is one’s wife or husband” in a marriage. Craig v. Scandia, Inc., 634 So.2d 944, 946 (La. Ct. App. 1994) (holding that although the husband and the decedent had been separated, they never divorced and were still married such that the husband was the decedent’s “surviving spouse” under the wrongful death statute). Thus, under principles of statutory construction it is likely that Louisiana courts would require a marriage for inheritance under the intestate succession statutes as a “spouse” and would not recognize a partner in an out-of-state non-marital legal relationship to be a “spouse.”^[8]    

We further note that unlike some States, Louisiana does not authorize domestic partnerships or other comparable non-marital legal relationships under State statutory law.^[9] We have found no case indicating that Louisiana courts would recognize an out-of-state non-marital legal relationship with inheritance rights for the purpose of inheritance under Louisiana’s intestate succession laws as a “surviving spouse.”  

In summary, we have found no binding authority in Louisiana case law or statutory law that would require a Louisiana court to find an out-of-state non-marital legal relationship to be the equivalent of marriage and partners to such a non-marital legal relationship the equivalent of spouses for intestate succession inheritance purposes. In the absence of binding authority on Louisiana courts on this issue and based on the plain text of Louisiana intestate succession statutes, we believe Louisiana courts would likely find that Claimant - as a party to a California domestic partnership and in the absence of a valid marriage - could not inherit from NH as his “surviving spouse” under Louisiana intestate succession law. Accordingly, we believe it there is legal support for the agency to find that Claimant is not the NH’s widow under the Act for Title II benefit purposes.

We believe Louisiana courts would find that as of the NH’s death on October XX, 2022, the Claimant could not inherit a spouse’s share from the NH under Louisiana intestate succession law based on the couple’s California opposite-sex domestic partnership. Accordingly, we believe there is legal support for the agency to conclude that the Claimant is not the NH’s widow for purposes of her application for widow’s insurance benefits and the LSDP on the NH’s record.   

The claimant is not entitled to widow's benefits based on her alleged first husband's record. The highest court in Louisiana, where he resided at the time of his death, would follow Mississippi law regarding the validity of the marriage. The marriage was not valid because both members of the couple were underage, did not have parental consent, and did not live together after the ceremony. The claimant is still married to her most recent husband, on whose record she has also filed. Because she obtained a separation "a mensa et thoro" from him, they are legally separated but not divorced.

We are responding to your request for our opinion regarding claimant Catherine V~ marital status and entitlement to widow's benefits on the record of Sidney R~, or wife's benefits on the record of David P~. First, you asked whether Ms. V~ marriage to Sidney R~ was valid when contracted under Mississippi law. Secondly, there is an issue as to whether Ms. V~ subsequent marriages to Robert S~, August I~, and David R~ precluded her from establishing that she is Sidney R~'s widow. Third, you inquired whether Ms. V~ is currently the legal spouse of David R~.

After reviewing the facts and relevant law, it is our opinion that Ms. V~ is not entitled to widow's benefits on the record of Sidney R~ because she and Mr. R~ were never validly married under Mississippi law. For this reason, it is unnecessary to determine the impact on widow's benefits of her subsequent marriages to Mr. S~ and Mr. I~. However, we believe that Ms. V~ is entitled to wife's benefits on the record of David R~ because she is still legally married to him, provided all other conditions for benefit entitlement are met.

Due to the complex marital history involved, we provide the following chronology of relevant facts:

1. Catherine V~ and Sidney R~ were married on August 16, 1949, in Pearl River County, Mississippi. Although the court record reports Ms. V~ age at the time as 18 and Mr. R~'s age as 21, based on the birthdates reported in their Social Security applications and on Ms. V~ admission, their actual ages were 15 and 18, respectively. Ms. V~ stated that she and Mr. R~ never lived together, but that they did not obtain a divorce or annulment.

2. On October 20, 1950, Ms. V~ married Robert S~ in Louisiana. Ms. V~ did not report her marriage to Mr. R~ on her application for a marriage license with Mr. S~. Ms. V~ and Mr. S~ were divorced by judgment entered on March 5, 1956.

3. On June 4, 1954, Sidney R~ married Gloria H~. He did not mention his marriage to Ms. V~ on his application for a marriage license with Ms. H~.

4. Ms. V~ states that she married August I~ on December 30, 1956 or March 1, 1957, in Louisiana. They were divorced by a decree dated October 20, 1969.

5. Mr. I~ married Eve Cabell on November 20, 1969.

6. Ms. V~ states that she married David R~ on January 1, 1973, in Mississippi. Mr. R~ confirms that they were married in Mississippi, but he does not recall the date.

7. Ms. V~ and Mr. R~ both state that they separated shortly after they were married. Mr. R~ thought Ms. V~ had obtained a divorce. Ms. V~ states that she learned that the divorce was never finalized. A judgment decreeing a separation "a mensa et thoro" was entered on May 2, 1975, in Jefferson Parish, Louisiana.

8. August I~ died in May 1984 while domiciled in Louisiana. Eve Cabell I~ receives widow's benefits on his record.

In 1989, Ms. V~ applied for disabled divorced widow's benefits on Mr. I~'s record. She did not mention her prior marriage to Mr. R~. Her application was denied because she was not finally divorced from Mr. R~.

10. Sidney R~ filed for disability benefits in 1991, but did not list his marriage to Ms. V~ on his disability application. He died in May 1991. Gloria H~ R~ receives widow's benefits on his record.

11. On January 28, 2003, Ms. V~ applied for widow's benefits under 42 U.S.C. § 402(e), on Mr. R~'s record.

12. Also on January 28, 2003, Ms. V~ applied for wife's benefits under 42 U.S.C. § 402(b) on Mr. R~'s record.

Entitlement to Widow's Benefits

A claimant is entitled to widow's benefits if she is the insured's widow. See 42 U.S.C. § 402(e)(1); 20 C.F.R. § 404.335(a). This relationship requirement will be met if the claimant and the insured were validly married under state law at the time the insured died. See 20 C.F.R. § 404.345. The controlling law is the law of the state where the insured had a permanent home when he died. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Catherine V~ applied for widow's benefits on the record of Sidney R~, who died in May 1991 while domiciled in Louisiana. Therefore, Louisiana law is controlling.

Under Louisiana law, a marriage that is valid in the state where contracted, or in the state where the parties were first domiciled as husband and wife, shall be treated as a valid marriage unless to do so would violate a strong public policy of the state whose policies would be most seriously impaired if its law were not applied to the particular issue. See La. Civ. Code Ann. art. 3519, 3520(A) (West 1994). Catherine V~ and Sidney R~ underwent a ceremonial marriage in Pearl River County, Mississippi, on August 16, 1949. We do not believe the public policy of either state at the time of the marriage would be seriously impaired by the application of Mississippi law in this case because Louisiana public policy regarding underage marriages appears to be consistent with Mississippi law on this issue. Compare La. Civ. Code Ann. art. 92 (West Supp. 1941) and La. Civ. Code Ann. art. 97, 112 (West 1932) (parental consent required, but its absence does not necessarily invalidate the marriage) with Miss. Code Ann., §§ 460, 461 (1942) (parental consent required, but its absence does not invalidate the marriage where the parties cohabitate after the ceremony). Therefore, Louisiana courts would look to the laws of Mississippi to determine whether Ms. V~ marriage to Mr. R~ was valid.

At the time the marriage ceremony between Ms. V~ and Mr. R~ was performed, Ms. V~ was fifteen years old, and Mr. R~ was eighteen years old, although they stated their ages as 18 and 21, respectively, on the marriage application. Ms. V~ states that she and Mr. R~ never lived together, and no evidence has been provided to the contrary. No divorce record has been located, and Ms. V~ states that no divorce or annulment was secured.

Under Mississippi law applicable in 1949, a female under the age of eighteen, and a male under the age of twenty-one, could marry, but the clerk of court was required to obtain the consent of the parents or guardian of the minor child as a condition of the marriage license. See Miss. Code Ann., § 460 (1942). There does not appear to be parental consent in Ms. V~ case, as she misrepresented her age to the clerk of the court. Further, Ms. V~ stated that upon learning of her marriage to Mr. R~, her parents destroyed the marriage certificate. Nonetheless, the absence of parental consent and an irregular license do not invalidate a marriage. Section 461 of the Mississippi Code states that the failure to comply with the provisions of that section shall not affect the validity of any marriage duly solemnized and followed by cohabitation. See Miss. Code Ann., § 461 (1942). The Supreme Court of Mississippi interpreted an earlier version of this section to apply to the requirement of parental consent for underage marriages. See Hunt v. Hunt, 161 So. 119, 121-22 (Miss. 1935). In the Hunt case, the Court held valid the ceremonial marriage of the thirteen-year-old appellant where she and the appellee lived together and publicly acted as if they were married, even though they did not consummate the marriage. Id. The irregular license arising from their age was cured by their conduct after the marriage. The parties' cohabitation was the decisive factor for the Court. Id.

IApplying the Hunt case to Ms. V~ situation, it appears that a Mississippi court would find that her marriage to Mr. R~ was not valid because the element of cohabitation is absent. Both parties were underage at the time of the issuance of license and the ceremony, they did not have parental consent, and they did not live together or hold themselves out to the public as husband and wife following the ceremony. Significantly, neither Ms. V~ nor Mr. R~ mentioned their marriage when they applied for subsequent marriage licenses with other persons, and Mr. R~ did not list Ms. V~ as a former spouse when he applied for disability benefits. These omissions, as well as the fact that they each married other individuals, indicate that Ms. V~ and Mr. R~ did not view their marriage as valid. Due to the absence of cohabitation, we believe that a Mississippi court would not recognize Ms. V~ as Mr. R~'s legal wife.

For these reasons, we believe that Catherine V~ was not validly married to Sidney R~, and she therefore is not entitled to widow's benefits on his record. Because Ms. V~ was never validly married to Mr. R~, it is unnecessary to determine the impact of her subsequent marriages to Mr. S~ and Mr. I~ on her application for widow's benefits on Mr. R~'s record.

Although Ms. V~ also applied for widow's benefits on the record of August I~, she is not entitled to benefits on his account because, as discussed below, she is still married to David R~. See 42 U.S.C. § 405(e)(1)(A); 20 C.F.R. §§ 404.335, 404.336 (applicant is entitled to widow's benefits or surviving divorced wife's benefits only if she is not married, except under certain narrow circumstances not at issue here).

Entitlement to Wife's Benefits

A claimant is entitled to wife's benefits if her relationship to the insured as a wife has lasted at least one year. See 42 U.S.C. § 402(b)(1)(C); 20 C.F.R. § 404.330(a)(1). The controlling law is the law of the state where the insured had a permanent home when the claimant applied for wife's benefits. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Catherine V~ applied for wife's benefits on the record of David R~. Mr. R~ was living in Louisiana six months prior to Ms. V~ application, and there is no evidence that he subsequently changed his domicile. Therefore, Louisiana law is controlling.

On May 2, 1975, a Louisiana Court issued a judgment of separation "a mensa et thoro" between Ms. V~ and Mr. R~. A separation "a mensa et thoro" is also known as a separation from bed and board. See Black's Law Dictionary, p. 494 (7th ed. 1999). At the time Ms. V~ obtained her separation judgment from Mr. R~, Louisiana law provided that a judgment of separation from bed and board meant that the parties would live apart for a period of time prior to applying for a final divorce decree. See La. Civ. Code Ann. art. 155, repealed by 1990 La. Acts 1009, §9, eff. Jan. 1, 1991. Therefore, the judgment of separation from bed and board was a provisional proceeding during which the matrimonial relation still existed. See Stallings v. Stallings, 148 So. 687, 688 (La. 1933). A decree of separation from bed and board is distinct from the proceedings for a divorce, and the divorce proceeding is not a mere continuation of the proceeding for a separation from bed and board. See Donato v. Frillot, 40 So. 634 (La. 1906). Thus, the separation "a mensa et thoro" that Ms. V~ obtained against Mr. R~ is not a final divorce.

The law providing for the separation from bed and board was repealed effective January 1, 1991. See 1990 La. Acts 1009, § 9, eff. Jan. 1, 1991. The current Louisiana statute provides that spouses who obtained a judgment of separation from bed and board rendered before January 1, 1998, shall remain judicially separated until they either reconcile, or obtain a divorce. See La. Rev. Stat. Ann. § 9:382, amended by 1997 La. Acts 1078, § 3, eff. January 1, 1998. Because Ms. V~ and Mr. R~ neither reconciled nor obtained a divorce, they are still considered to be judicially separated, but not divorced, under Louisiana law. Therefore, Ms. V~ is still married to David R~, and is entitled to wife's benefits on his record, provided all other conditions for benefit entitlement are met.

CONCLUSION

We do not believe that Ms. V~ is entitled to widow's benefits based on her ceremonial marriage to Sidney R~ in Mississippi. We believe that the highest court in Louisiana, where Mr. R~ resided at the time of his death, would follow Mississippi law regarding the validity of the marriage. Because Ms. V~ and Mr. R~ were underage, did not have parental consent, and did not live together following the ceremony, a Mississippi court would likely find that the marriage was not valid. Further, it is our opinion that Ms. V~ is still married to David R~. Although Ms. V~ obtained a separation "a mensa et thoro" from Mr. R~, this merely constitutes a judicial separation, and is not the same as a divorce. Because Ms. V~ was never divorced from Mr. R~, she remains his wife and is entitled to benefits on his record, provided all other conditions for benefit entitlement are met.

Tina M. W~

Acting Chief Counsel, Region V

By:

Joanna T~

Assistant Regional Counsel