TN 40 (08-17)

PR 05005.031 Nevada

A. PR 17-112 Nevada Opposite Sex Domestic Partnership Eligibility

Date: July 7, 2017

1. Syllabus

The number holder (NH) was domiciled in Nevada at the time of death; therefore, the Nevada law governs whether the Claimant would inherit the NH’s personal property, as would a surviving spouse if he died intestate. According to a certificate issued by the Secretary of State, the Claimant and the NH were registered as domestic in accordance with the Nevada law. Under the Nevada Domestic Partnership Act (NDPA), Nevada recognizes domestic partnerships and gives domestic partners the same rights, protections, and benefits as granted to spouses. This means that the NDPA would give the Claimant the right to inherit a widow’s share of NH’s insured personal property if he died intestate. The Claimant is the NH’s widow for purposes of survivor’s benefits and if the Claimant can show that she was living with NH at the time of his death, she is also entitled to a LDSP on his record.

2. Opinion

QUESTION

You asked whether the claimant, C~ (Claimant), is eligible for a Lump Sum Death Payment (LSDP) based on her opposite-sex domestic partnership with deceased numberholder A~ (NH).

SHORT ANSWER

Yes. Claimant and NH entered into a valid domestic partnership in Nevada, and it appears that they were living together when NH died. If the agency can confirm that the parties were living in the same household at the time of death, then Claimant is entitled to a LSDP on NH’s record.

SUMMARY OF EVIDENCE

On February XX, 2014, NH and Claimant entered into an opposite-sex domestic partnership in Nevada, as documented in a certificate of domestic partnership issued by the Secretary of State for the State of Nevada.

On June XX, 2016, NH passed away in E~, Nevada. According to a March XX, 2017 Report of Contact, the couple resided in E~ for the duration of their partnership; presumably, the couple was living in the same household at the time of death.

On February XX, 2017, Claimant filed for LSDP on NH’s earnings record.

APPLICABLE LAW

Federal Law

Upon the death of an insured individual, the agency may pay a LSDP to the widow or widower of the deceased individual if the widow or widower was living in the same household as the deceased at the time the death occurred. Social Security Act § 202(i)(1); 20 C.F.R. § 404.390; Program Operations Manual System RS 00210.001.

Under Section 216(h) of the Act, the agency will find a claimant to be the widow of an insured individual if the courts of the State in which the insured individual resided at the time of his death would find that the claimant was validly married to the insured individual when the death occurred. Social Security Act § 216(h)(1)(A)(i). However, even if the claimant was not married to the insured individual, the agency will deem the claimant to be the insured individual’s widow if, under the laws of the State where the insured individual was domiciled at the time of his death, the claimant would inherit the surviving spouse’s share of the insured individual’s personal property if he died intestate (without leaving a will). Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345 (“The relationship requirement will also be met if under State law you would be able to inherit a wife’s, husband’s, widow’s, or widower’s share of the insured’s personal property if he or she were to die without leaving a will.”).

In this case, NH was domiciled in Nevada at the time of death. Thus, Nevada law governs whether Claimant would inherit NH’s personal property as would a surviving spouse if he died intestate.

Nevada Law

The Nevada legislature enacted the Nevada Domestic Partnership Act (NDPA) in 2009. Nev. Rev. Stat. § 122A.010. Under the NDPA, Nevada recognizes domestic partnerships and gives domestic partners the same rights, protections, and benefits as granted to spouses. Nev. Rev. Stat. § 122A.200(1)(a).1

To register a domestic partnership in Nevada, two persons must furnish proof that 1) they have a common residence; 2) neither person is married or a member of another domestic partnership unless they have a similar legal union from another jurisdiction; 3) they are not related by blood in a way that would prevent them from being married in Nevada; 4) they are at least 18 years old; and, 5) they are competent to consent to the domestic partnership. Nev. Rev. Stat. § 122A.100(2). In addition to meeting the foregoing requirements, the parties must file a signed and notarized declaration with the Secretary of State with the filing fee to register their domestic partnership. Nev. Rev. Stat. § 122A.100(1).

ANALYSIS

The evidence suggests that the NH and Claimant’s opposite-sex domestic partnership in Nevada was valid. According to a certificate issued by the Secretary of State, Claimant and the NH were registered as domestic in accordance with Chapter 122A. Next, we consider whether Nevada would recognize their relationship for intestate succession purposes.

The NDPA conferred on surviving domestic partners the same rights, protections, and benefits as spouses. This means that the NDPA would give Claimant the right to inherit a widow’s share of NH’s insured personal property if he died intestate.

Accordingly, Claimant would be entitled to a LSDP if she and NH were living together at the time of death.

CONCLUSION

Based on the foregoing, Claimant qualifies as NH’s widow under section 216(h)(1)(A) of the Act because she would be able to inherit intestate as NH’s surviving domestic partner under Nevada law. If she can show that she was living with NH at the time of his death, she is entitled to a LDSP on his record.

B. PR 17-060 Nevada’s Recognition of a Domestic Partnership Formed in New York

Date: March 13, 2017

1. Syllabus

The Agency must determine if the number holder (NH) and the Claimant had a valid domestic partnership in New York, and if so, whether Nevada would recognize such relationship for intestate inheritance purposes. In this case, the domestic partnership occurred in New York, but the number holder (NH) died while domiciled in Nevada.

The NH and the Claimant’s opposite-sex domestic partnership was valid under New York City’s Domestic Partnership Law (DPL). Under the Nevada Domestic Partnership Act (NDPA), Nevada recognizes domestic partnerships and gives domestic partners the same rights, protections, and benefits as granted to spouses and surviving spouses. This would include intestate inheritance rights. Nevada recognizes domestic partnerships formed in other jurisdictions, but only if the partners register their domestic partnership with the Nevada Secretary of State. The Claimant reported that she and the NH did not register their New York City domestic partnership with the Nevada Secretary of State. Since the NH and the Claimant did not register their New York City domestic partnership with the Nevada Secretary of State, and they are no longer capable of doing so, Nevada would not recognize their domestic partnership as valid. Therefore, the Claimant does not qualify as NH’s widow under section 216(h)(1)(A) of the Act.

2. Opinion

QUESTION

You asked whether the claimant, L~ (Claimant), had a valid domestic partnership with J~ (NH), for purposes of determining Claimant’s entitlement to widow’s benefits and the lump-sum death payment (LSDP), where the couple entered into an opposite-sex domestic partnership in New York, but NH died while domiciled in Nevada.

SHORT ANSWER

No. Claimant and NH did not register their New York domestic partnership in Nevada, and Nevada would therefore not recognize their domestic partnership. Accordingly, Claimant is not entitled to widow’s benefits or the LSDP.

SUMMARY OF EVIDENCE

On November XX, 2002, NH and Claimant entered into an opposite-sex domestic partnership in New York City as documented in a certificate of domestic partnership issued by the Office of the City Clerk for the City of New York. At some point thereafter, the couple moved to Nevada.

On August XX, 2014, NH passed away at his residence in L~, Nevada. On September XX, 2014, Claimant filed for widow’s benefits and the lump-sum death payment.

On February XX, 2015, the C~ County District Court in Nevada issued an order with respect to Claimant’s petition to set aside NH’s estate without administration pursuant to Nevada Revised Statute § 146.070(2). That provision allows estates not exceeding $100,000 to be assigned without administration. The Court determined that the value of NH’s estate did not exceed $100,000 and that NH executed a valid will naming Claimant as his personal representative and sole legatee of his estate. The Court ordered that NH’s entire estate be set aside, transferred, and conveyed to Claimant as NH’s legatee under his will.

On May XX, 2015, Claimant moved to New Jersey, where she currently resides.

APPLICABLE LAW

Federal Law

To be entitled to widow’s insurance benefits under Title II of the Social Security Act (Act), a claimant must establish that he or she is the widow or widower of an individual who died fully insured. See Social Security Act §§ 202(e), 216(c); 20 C.F.R. § 404.335. Under Section 216(h) of the Act, 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 death would find that the claimant was validly married to the insured individual when the death occurred. Social Security Act § 216(h)(1)(A)(i). However, even if the claimant was not married to the insured individual, the agency will deem the claimant to be the insured individual’s widow or widower if, under the laws of the State where the insured individual was domiciled at the time of his death, the claimant would inherit the surviving spouse’s share of the insured individual’s personal property if he or she died intestate (without leaving a will). Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345 (“The relationship requirement will also be met if under State law you would be able to inherit a wife’s, husband’s, widow’s, or widower’s share of the insured’s personal property if he or she were to die without leaving a will.”).

Upon the death of an insured individual, the agency may also pay a lump-sum death payment to the widow or widower of the deceased individual if the widow or widower was living in the same household as the deceased at the time the death occurred. Social Security Act § 202(i)(1); 20 C.F.R. § 404.390; Program Operations Manual System (POMS) RS 00210.001.

In this case, the domestic partnership occurred in New York, but NH died while domiciled in Nevada. Thus, we must determine if NH and Claimant had a valid domestic partnership in New York, and if so, whether Nevada would recognize such relationship for intestate inheritance purposes.

New York Law

Under New York City’s Domestic Partnership Law (DPL), two people may register a domestic partnership in New York City if 1) both individuals are New York City residents or at least one partner is employed by New York City on the date of registration; 2) both individuals are at least 18 years old; 3) neither person is married; 4) neither person is in another domestic partnership or had been a party to another domestic partnership within the six months prior to registration; 5) the parties are not related to each other by blood in a way that would prevent them from being married in New York; and, 6) the individuals have a close and committed personal relationship, live together, and have been living together on a continuous basis. N.Y.C. Code § 3-241(a). To register the domestic partnership, the parties must submit an affidavit of domestic partnership to the city clerk and be present when they submit the affidavit. N.Y.C. Code § 3-241(b).

A New York City registered domestic partnership confers a series of rights and benefits, including, for example, tenancy rights, health benefits coverage, and hospital or correctional visitation rights. Furthermore, the State of New York also confers a couple of limited benefits on New York City domestic partners, including visitation rights at a health care facility and death benefits for New York City employees killed in the September 11, 2001 attacks. See id. However, the State of New York does not confer any inheritance rights to a New York City surviving domestic partner. See id.

Nevada Law

The Nevada legislature enacted the Nevada Domestic Partnership Act (NDPA) in 2009. Nev. Rev. Stat. § 122A.010. Under the NDPA, Nevada recognizes domestic partnerships and gives domestic partners the same rights, protections, and benefits as granted to spouses. Nev. Rev. Stat. § 122A.200(1)(a). Surviving domestic partners also have the same rights, protections, and benefits, and are subject to the same responsibilities, obligations, and duties as the State grants and imposes on widows and widowers. Nev. Rev. Stat. § 122A.200(1)(c). This would include intestate inheritance rights. To be eligible to register for a domestic partnership in Nevada, two persons must furnish proof that 1) they have a common residence; 2) neither person is married or a member of another domestic partnership unless they have a similar legal union from another jurisdiction; 3) they are not related by blood in a way that would prevent them from being married in Nevada; 4) they are at least 18 years old; and, 5) they are competent to consent to the domestic partnership. Nev. Rev. Stat. § 122A.100(2). In addition to meeting the foregoing requirements, the parties must file a signed and notarized declaration with the Secretary of State with the filing fee to register their domestic partnership. Nev. Rev. Stat. § 122A.100(1).

Nevada also recognizes non-marital legal unions validly formed in other jurisdictions that are substantially equivalent to a Nevada domestic partnership. Nev. Rev. Stat. § 122A.500. However, Nevada requires that the parties register their legal union with the Nevada Secretary of State in order for Nevada to recognize it as a valid domestic partnership. Id.; Nev. Rev. Stat. § 122A.100(1)(b) (parties must pay a reasonable filing fee to the office of the Secretary of State which estimates the cost incurred to issue the Certificate of Registered Domestic Partnership and the associated administrative costs).

ANALYSIS

The evidence suggests that the NH and Claimant’s opposite-sex domestic partnership in New York City was valid. We therefore must determine whether Nevada would recognize their relationship for intestate succession purposes.

Nevada recognizes domestic partnerships formed in other jurisdictions, but only if the partners register their domestic partnership with the Nevada Secretary of State. Nev. Rev. Stat. §§ 122A.100(1)(b), 122A.500. Nevada further requires that the out-of-state legal union be “substantially equivalent” to a Nevada domestic partnership. Id. Claimant and NH had a New York City domestic partnership that conferred fewer rights than a Nevada domestic partnership. Significantly, the New York City domestic partnership did not grant a surviving domestic partner the right to inherit intestate. Thus, there is a question as to whether the New York City domestic partnership was “substantially equivalent” to a Nevada domestic partnership.

An exhaustive legal search of Nevada law did not reveal any statutes or cases that define the term “substantially equivalent” for purposes of Nevada Revised Statute § 122A.500. However, in response to our question, the Nevada Secretary of State’s Office clarified that Nevada recognizes any governmental domestic partnership, including municipally registered domestic partnerships, as “substantially equivalent” to a Nevada domestic partnership for purposes of Nevada Revised Statute section 122A.500. See Email from F~, Program Officer, Office of the Secretary of State, Nevada (February 25, 2015, 10:08 PST) (“F~ Email”). Nevertheless, the partners must still complete a declaration of domestic partnership in order to register their domestic partnership in Nevada, and Nevada only recognizes an out-of-state domestic partnership as of the date it is registered with the Nevada Secretary of State. Id.

Claimant reported that she and NH did not register their New York City domestic partnership with the Nevada Secretary of State. Since NH is deceased, Claimant can no longer register their domestic partnership with the Nevada Secretary of State because the Domestic Partnership Declaration form necessary for the registration must have notarized signatures from both parties. See Nev. Rev. Stat. §§ 122A.100(1)(b), 122A.500; F~ Email; Nevada Secretary of State, Information on Domestic Partnership Filings, available at http://nvsos.gov/index.aspx?page=269; Declaration of Domestic Partnership, available at http://nvsos.gov/Modules/ShowDocument.aspx?documentid=1192. Therefore, Claimant’s New York City domestic partnership cannot be the basis of spousal intestacy rights in the NH’s estate.

While the C~ County District Court issued an order transferring NH’s estate to Claimant as his legatee, the Court’s order is immaterial in determining whether Nevada recognized Claimant as NH’s domestic partner. Pursuant to Nevada Revised Statute §146.070(2), if a decedent has no surviving spouse or minor child, and the gross value of the decedent’s estate does not exceed $100,000, the estate may be assigned without administration. Nev. Rev. Stat. § 146.070(2). The Court’s order states that NH’s estate did not exceed $100,000 and that NH executed a valid will naming Claimant as his personal representative and the sole legatee of his estate. Accordingly, the Court ordered that NH’s estate be conveyed to Claimant as NH’s legatee under his will. Id. Although the Court’s order also notes that NH and Claimant were registered domestic partners in New York, the Court’s decision to transfer NH’s estate to Claimant was based on NH’s will and Claimant’s status as legatee of NH’s estate rather than Claimant’s status as NH’s domestic partner. Thus, the Court’s order does not suggest that Nevada recognized the validity of Claimant and NH’s New York City domestic partnership in any way related to intestate inheritance rights.

In sum, since NH and Claimant did not register their New York City domestic partnership with the Nevada Secretary of State, and they are no longer capable of doing so, Nevada would not recognize their domestic partnership as valid.

Based on the foregoing, Claimant would not be able to inherit intestate as NH’s surviving domestic partner under Nevada law. See Nev. Rev. Stat. § 122A.200(1)(c). Therefore, Claimant does not qualify as NH’s widow under section 216(h)(1)(A) of the Act.

CONCLUSION

Claimant and NH did not register their New York City domestic partnership in Nevada. Therefore, Nevada would not recognize their domestic partnership as valid. Claimant does not qualify as NH’s surviving domestic partner with inheritance rights under the laws of NH’s domicile state, and thus, she is not entitled to widow’s insurance benefits or the LSDP.

C. PR 15-152 Validity of Gypsy Marriage Under California and Nevada Law

June 22, 2015

1. Syllabus

The NH was domiciled in Nevada at the time of his death, so the agency looks to Nevada law to determine whether Claimant was the NH’s legal, putative or deemed spouse. Nevada follows the general rule, recognizing the validity of an out-of-state marriage so long as it is lawful and valid according to the law of the location where the marriage was celebrated. In this case, the marriage took place in California, therefore we look to the California law to determine if the marriage was valid. In California, in order to effectuate a valid marriage, the marriage shall be licensed, solemnized, and authenticated, and the authenticated marriage license shall be returned to the county recorder of the county where the marriage license was issued and failure to comply with statutory licensing, certification, or solemnization requirements render a marriage invalid. The NH and the claimant did not obtain, authenticate, and return a marriage license issued by the county clerk as required by California law. California may recognize a putative marriage even where the parties to a purported marriage fail to execute the licensing and solemnization requirements, but based on the evidence and facts in this case, the claimant is not NH’s legal, putative or deemed spouse. Therefore, a Nevada court would not acknowledge Claimant’s out-of-state “gypsy marriage” to the NH as a legally valid marriage. Further, because Nevada does not recognize common law marriage, Nevada courts would find the Claimant is not eligible to inherit from the NH’s intestate estate as his spouse. Claimant is not entitled to widow’s benefits on the NH’s record.

2. Opinion

You asked whether, D~ (Claimant) was validly married to S~, the number holder (NH), for purposes of determining Claimant’s entitlement to widow’s insurance benefits;2 where the parties did not have a state-registered marriage, but publicly celebrated a gypsy marriage in California and thereafter lived in Nevada.

SHORT ANSWER

No. Claimant and NH were never validly married. Despite engaging in a public wedding celebration in California, Claimant and the NH did not obtain, authenticate, and return a marriage license as required by California law, and the record reflects no good faith effort to do so or belief that they had. Further, Nevada does not recognize common law marriage. Therefore, Claimant is not entitled to widow’s benefits on the NH’s account because she is not NH’s legal, putative or deemed spouse.

BACKGROUND

In his February 1, 2010 application for Disability Insurance Benefits (DIB), the NH stated that he married the Claimant on October 10, 1972. However, in his Supplemental Security Income (SSI) application filed on the same date, the NH clarified his belief that he was married to Claimant because they had “lived together so long that [they were] considered to be legally married . . . .”

In her December 23, 2014 application for widow’s insurance benefits, Claimant stated that she was married “by a clergyman or public official” on October 10, 1972 in California. However, according to her January 2, 2015 SSA-795 declaration, she stated that during the public ceremony which took place in an Elks Lodge in Anaheim, California, the uncle and aunt of the groom (not specifically identified as the NH) took her hand and walked her across the dancefloor to her new in-laws, which purportedly “made the marriage official in our gypsy culture.” Claimant also provided a news clipping from the Los Angeles Times, which was originally published on October 10, 1972, that described the arranged “gypsy wedding” of “D~” to “S~”. According to the article, after exchanging money, an unidentified man led the bride “running away from the crowd”, which constituted the marriage rite. The parties were above the age of consent to marry at the time of this ceremony.3

The Orange County Clerk-Recorder (California) has no record of a public marriage between Claimant and the NH from August 1, 1889 through the time of the NH’s death.

Claimant submitted evidence that she and the NH filed their 2006 and 2009 U.S. Income Tax Returns jointly, purporting to be married. Claimant also provided a letter dated September 21, 1988, which was apparently sent by the NH to an unknown party in which the NH referred to Claimant as his wife, and asserted that the name on Claimant’s birth certificate was a “joke name” (identified as L~) and that they could not afford a legal name change.

The NH’s Certificate of Death issued by Nevada’s Department of Human Resources states that the NH died on November XX, 2010, in Las Vegas, and lists Claimant as his spouse.

Claimant provided an additional Form SSA-795 declaration dated February XX, 2015, in which she affirmed that she and the NH were domiciled in Nevada at the time of the NH’s death.

LEGAL STANDARDS

Federal Law

To be entitled to widow’s insurance benefits under Title II of the Social Security Act (Act), a claimant must establish that he or she is the widow or widower of an individual who died fully insured. See Social Security Act §§ 202(e), 216(c); 42 U.S.C. §§ 402(e), 416(c); 20 C.F.R. § 404.335. Under Section 216(h) of the Act, 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 death would find that the claimant was validly married to the insured individual when the death occurred. Social Security Act § 216(h)(1)(A)(i); 42 U.S.C. § 416(h)(1)(A)(i). However, even if the claimant was not married to the insured individual, the agency will deem the claimant to be the insured individual’s widow or widower if, under the laws of the State where the insured individual was domiciled at the time of his death, the claimant would inherit the surviving spouse’s share of the insured individual’s personal property if he or she died intestate (without leaving a will). Social Security Act § 216(h)(1)(A)(ii); 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345 (“The relationship requirement will also be met if under State law you would be able to inherit a wife’s, husband’s, widow’s, or widower’s share of the insured’s personal property if he or she were to die without leaving a will.”); Program Operations Manual System (POMS) GN 00305.085 (guidelines for entitlement based upon “putative marriage”);4 POMS RS 00207.001 (“The claimant is the widow(er) of a deceased NH if he or she was related to the NH as the NH’s legal spouse, putative spouse, or deemed spouse.”). Further, the agency will find the claimant to be the insured’s widow(er) if “it is established to the satisfaction of the Commissioner of Social Security that such [claimant] in good faith went through a marriage ceremony with such individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage.” Social Security Act § 216(h)(1)(B)(i); 42 U.S.C § 416(h)(1)(B)(i); 20 C.F.R. § 404.346; POMS GN 00305.055 (guidelines for entitlement based upon “deemed marriage”).

Nevada Law

The NH was domiciled in Nevada at the time of his death, so the agency looks to Nevada law to determine whether Claimant was the NH’s legal, putative or deemed spouse. Nevada considers marriage a civil contract to which the parties, who are capable in law of contracting, must consent. Nev. Rev. Stat. § 122.010(1). However, consent alone will not constitute marriage; it must be followed by solemnization. Id. Nevada does not recognize common law marriages (except those in effect prior to March 29, 1943). Nev. Rev. Stat. § 122.010(2); see also POMS GN 00305.075.

Nevada has no explicit choice of law statute.5 However, in the absence of a conflicting statutory provision, it appears that Nevada follows the “general rule;” recognizing the validity of an out-of-state marriage so long as it is lawful and valid according to the law of the location where the marriage was celebrated. See U.S. v. Sacco, 428 F.2d 264, 268 (9th Cir. 1970) (“The general rule is that the validity of a marriage is determined by the law of the state where it took place”) (citing Loughran v. Loughran, 292 U.S. 216, 223 (1934) (“Marriages not polygamous or incestuous, or otherwise declared void by statute, will, if valid by the law of the state where entered into, be recognized as valid in every other jurisdiction”)); POMS GN 00305.005 (“The law of the place where a marriage occurred ordinarily determines the validity of a marriage. If the marriage is valid in that jurisdiction, it is usually held valid in other places.”). Here, Claimant alleges that her ceremonial marriage to the NH took place in California. As such, we must look to California law.

California Law

In order to effectuate a valid marriage in California, the marriage “shall be licensed, solemnized, and authenticated, and the authenticated marriage license shall be returned to the county recorder of the county where the marriage license was issued . . . .” Cal. Fam. Code § 306.6 California courts expressly hold that the failure to comply with statutory licensing, certification, or solemnization requirements render a marriage invalid. In re Estate of DePasse, 97 Cal. App. 4th 92, 102-103 (Cal. App. 2002) (holding that California Family Code requirements are mandatory, which means a marriage is invalid in the absence of a marriage license); see also Burnham v. Cal. Pub. Employees Ret. Sys., 208 Cal. App. 4th 1576, 1584–85 (Cal. Ct. App. 2012) (failure to solemnize wedding renders it invalid); In re Estate of Tollefsen, 2009 WL 3470401, at *6 (Cal. Ct. App. Oct. 9, 2009) (citing In re Estate of DePasse, 97 Cal. App. 4th at 92); POMS PR 05405.006.C (except under special circumstances, “a marriage license must be procured to render a marriage valid in California”).7

Even where the parties to a purported marriage fail to execute the licensing and solemnization requirements, California may recognize a putative marriage. “A putative marriage is one in which at least one of the parties to an invalid marriage has a good faith belief that the marriage is valid.” Estate of Leslie, 37 Cal. 3d 186, 191 n.4 (Cal. 1984) (citing Cal. Civ. Code § 4452, now Cal. Fam. Code § 2251); POMS GN 00305.085.B.1 (in California, “where at least one of the parties to an invalid [ceremonial] marriage . . . entered into the marriage in good faith believing that it was valid, the spouse had status as a putative spouse and inheritance rights as a spouse so long as such good faith belief continued”).8

DISCUSSION

Under section 216(h)(1)(A) of the Act, the agency will find that Claimant is the widow of the NH if the courts of Nevada would find either: (1) that Claimant and the NH were validly married at the time of the NH’s death or (2) that Claimant would have the same status as the NH’s widow for purposes of sharing in his intestate personal property.

Here, Claimant cannot show that she had a valid marriage with the NH. See 20 C.F.R. §§ 404.345, 404.346. The parties did not obtain, authenticate, and return a marriage license issued by the county clerk as required by California law. See POMS PR 05405.006.C; Cal. Fam. Code § 306.9

Additionally, Claimant and the NH did not have a deemed marriage because their marriage was not merely invalidated by a legal impediment resulting from the lack of dissolution of a previous marriage or a defect in the procedure followed in connection with the purported marriage. See POMS GN 00305.055. Rather, the parties never attempted to register their purported marriage with any state. Indeed, according to the record, they sought only to make “the marriage official in [their] gypsy culture.”

Similarly, Claimant cannot show that she held a good faith belief in the existence of a valid marriage at its inception because she never sought to obtain, authenticate, and return a marriage license as required by California law. See Cal. Fam. Code § 306. Indeed, as indicated by the NH’s February 1, 2010 Supplemental Security Income application, the couple merely believed that they had “lived together so long that [they were] considered to be legally married[.]” However, even if Claimant held a good faith belief that Nevada permits common law marriage, her mistaken belief cannot overcome the requirements of Nevada law. See Nev. Rev. Stat. § 122.010(2). The putative spouse doctrine is intended only to protect parties without knowledge of factual or legal impediments to marriage. See Cal. Fam. Code § 2251; Nev. Rev. Stat. § 122.090; see also POMS GN 00305.085. Therefore, it is inapplicable here.

In sum, a Nevada court would not acknowledge Claimant’s out-of-state “gypsy marriage” to the NH as a legally valid marriage. Further, because Nevada does not recognize common law marriage, Nevada courts would find Claimant ineligible to inherit from the NH’s intestate estate as his spouse.

CONCLUSION

Because Claimant failed to prove a valid ceremonial marriage, or a good faith belief that her ceremonial marriage was valid, she is not entitled to widow’s benefits on the NH’s record. See 20 C.F.R. §§ 404.330, 404.345, 404.346.

D. PR 15-077 Validity of Marriage Under California and Nevada Law Deceased Wage Earner: A~ Claimant: M~

DATE: February 4, 2015

1. Syllabus

Neither the Act nor the regulations address which law governs the validity of the surviving spouse’s remarriage to a third party. In this case, the deceased wage earner was domiciled in California at the time of death, but the marriage between the claimant and the third party was celebrated in Nevada. Because all the parties to both marriages were domiciled in California at all relevant times, we believe California law applies to determine the validity of the claimant’s Nevada marriage to the third party.

Under California law, a marriage contracted outside the state of California would be valid in California if it would be valid by the laws of the jurisdiction in which the marriage was contracted. In this case, California courts would defer to Nevada law in determining the validity of a marriage contracted in Nevada.

2. Opinion

QUESTION

You asked whether M~ (Claimant)’s marriage to S~ before the finalization of her divorce from the deceased wage earner (DWE), A~ , precluded her entitlement to mother’s benefits on the DWE’s account.

SHORT ANSWER

No. Claimant and NH were never validly married. Despite engaging in a public wedding celebration in California, Claimant and the NH did not obtain, authenticate, and return a marriage license as required by California law, and the record reflects no good faith effort to do so or belief that they had. Further, Nevada does not recognize common law marriage. Therefore, Claimant is not entitled to widow’s benefits on the NH’s account because she is not NH’s legal, putative or deemed spouse.

BACKGROUND

In his February 1, 2010 application for Disability Insurance Benefits (DIB), the NH stated that he married the Claimant on October 10, 1972. However, in his Supplemental Security Income (SSI) application filed on the same date, the NH clarified his belief that he was married to Claimant because they had “lived together so long that [they were] considered to be legally married . . . .”

In her December 23, 2014 application for widow’s insurance benefits, Claimant stated that she was married “by a clergyman or public official” on October XX, 1972 in California. However, according to her January 2, 2015 SSA-795 declaration, she stated that during the public ceremony which took place in an Elks Lodge in Anaheim, California, the uncle and aunt of the groom (not specifically identified as the NH) took her hand and walked her across the dancefloor to her new in-laws, which purportedly “made the marriage official in our gypsy culture.” Claimant also provided a news clipping from the Los Angeles Times, which was originally published on October 10, 1972, that described the arranged “gypsy wedding” of “D~” to “S~”. According to the article, after exchanging money, an unidentified man led the bride “running away from the crowd”, which constituted the marriage rite. The parties were above the age of consent to marry at the time of this ceremony.10

The Orange County Clerk-Recorder (California) has no record of a public marriage between Claimant and the NH from August 1, 1889 through the time of the NH’s death.

Claimant submitted evidence that she and the NH filed their 2006 and 2009 U.S. Income Tax Returns jointly, purporting to be married. Claimant also provided a letter dated September 21, 1988, which was apparently sent by the NH to an unknown party in which the NH referred to Claimant as his wife, and asserted that the name on Claimant’s birth certificate was a “joke name” (identified as L~and that they could not afford a legal name change.

The NH’s Certificate of Death issued by Nevada’s Department of Human Resources states that the NH died on November XX, 2010, in Las Vegas, and lists Claimant as his spouse.

Claimant provided an additional Form SSA-795 declaration dated February 26, 2015, in which she affirmed that she and the NH were domiciled in Nevada at the time of the NH’s death.

LEGAL STANDARDS

Federal Law

To be entitled to widow’s insurance benefits under Title II of the Social Security Act (Act), a claimant must establish that he or she is the widow or widower of an individual who died fully insured. See Social Security Act §§ 202(e), 216(c); 42 U.S.C. §§ 402(e), 416(c); 20 C.F.R. § 404.335. Under Section 216(h) of the Act, 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 death would find that the claimant was validly married to the insured individual when the death occurred. Social Security Act § 216(h)(1)(A)(i); 42 U.S.C. § 416(h)(1)(A)(i). However, even if the claimant was not married to the insured individual, the agency will deem the claimant to be the insured individual’s widow or widower if, under the laws of the State where the insured individual was domiciled at the time of his death, the claimant would inherit the surviving spouse’s share of the insured individual’s personal property if he or she died intestate (without leaving a will). Social Security Act § 216(h)(1)(A)(ii); 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345 (“The relationship requirement will also be met if under State law you would be able to inherit a wife’s, husband’s, widow’s, or widower’s share of the insured’s personal property if he or she were to die without leaving a will.”); Program Operations Manual System (POMS) GN 00305.085 (guidelines for entitlement based upon “putative marriage”);11 POMS RS 00207.001 (“The claimant is the widow(er) of a deceased NH if he or she was related to the NH as the NH’s legal spouse, putative spouse, or deemed spouse.”). Further, the agency will find the claimant to be the insured’s widow(er) if “it is established to the satisfaction of the Commissioner of Social Security that such [claimant] in good faith went through a marriage ceremony with such individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage.” Social Security Act § 216(h)(1)(B)(i); 42 U.S.C § 416(h)(1)(B)(i); 20 C.F.R. § 404.346; POMS GN 00305.055 (guidelines for entitlement based upon “deemed marriage”).

Nevada Law

The NH was domiciled in Nevada at the time of his death, so the agency looks to Nevada law to determine whether Claimant was the NH’s legal, putative or deemed spouse. Nevada considers marriage a civil contract to which the parties, who are capable in law of contracting, must consent. Nev. Rev. Stat. § 122.010(1). However, consent alone will not constitute marriage; it must be followed by solemnization. Id. Nevada does not recognize common law marriages (except those in effect prior to March 29, 1943). Nev. Rev. Stat. § 122.010(2); see also POMS GN 00305.075.

Nevada has no explicit choice of law statute.12 However, in the absence of a conflicting statutory provision, it appears that Nevada follows the “general rule;” recognizing the validity of an out-of-state marriage so long as it is lawful and valid according to the law of the location where the marriage was celebrated. See U.S. v. Sacco, 428 F.2d 264, 268 (9th Cir. 1970) (“The general rule is that the validity of a marriage is determined by the law of the state where it took place”) (citing Loughran v. Loughran, 292 U.S. 216, 223 (1934) (“Marriages not polygamous or incestuous, or otherwise declared void by statute, will, if valid by the law of the state where entered into, be recognized as valid in every other jurisdiction”)); POMS GN 00305.005 (“The law of the place where a marriage occurred ordinarily determines the validity of a marriage. If the marriage is valid in that jurisdiction, it is usually held valid in other places.”). Here, Claimant alleges that her ceremonial marriage to the NH took place in California. As such, we must look to California law.

California Law

In order to effectuate a valid marriage in California, the marriage “shall be licensed, solemnized, and authenticated, and the authenticated marriage license shall be returned to the county recorder of the county where the marriage license was issued . . . .” Cal. Fam. Code § 306.13 California courts expressly hold that the failure to comply with statutory licensing, certification, or solemnization requirements render a marriage invalid. In re Estate of DePasse, 97 Cal. App. 4th 92, 102-103 (Cal. App. 2002) (holding that California Family Code requirements are mandatory, which means a marriage is invalid in the absence of a marriage license); see also Burnham v. Cal. Pub. Employees Ret. Sys., 208 Cal. App. 4th 1576, 1584–85 (Cal. Ct. App. 2012) (failure to solemnize wedding renders it invalid); In re Estate of Tollefsen, 2009 WL 3470401, at *6 (Cal. Ct. App. Oct. 9, 2009) (citing In re Estate of DePasse, 97 Cal. App. 4th at 92); POMS PR 05405.006.C (except under special circumstances, “a marriage license must be procured to render a marriage valid in California”).14

Even where the parties to a purported marriage fail to execute the licensing and solemnization requirements, California may recognize a putative marriage. “A putative marriage is one in which at least one of the parties to an invalid marriage has a good faith belief that the marriage is valid.” Estate of Leslie, 37 Cal. 3d 186, 191 n.4 (Cal. 1984) (citing Cal. Civ. Code § 4452, now Cal. Fam. Code § 2251); POMS GN 00305.085.B.1 (in California, “where at least one of the parties to an invalid [ceremonial] marriage . . . entered into the marriage in good faith believing that it was valid, the spouse had status as a putative spouse and inheritance rights as a spouse so long as such good faith belief continued”).15

DISCUSSION

Under section 216(h)(1)(A) of the Act, the agency will find that Claimant is the widow of the NH if the courts of Nevada would find either: (1) that Claimant and the NH were validly married at the time of the NH’s death or (2) that Claimant would have the same status as the NH’s widow for purposes of sharing in his intestate personal property.

Here, Claimant cannot show that she had a valid marriage with the NH. See 20 C.F.R. §§ 404.345, 404.346. The parties did not obtain, authenticate, and return a marriage license issued by the county clerk as required by California law. See POMS PR 05405.006.C; Cal. Fam. Code § 306.16

Additionally, Claimant and the NH did not have a deemed marriage because their marriage was not merely invalidated by a legal impediment resulting from the lack of dissolution of a previous marriage or a defect in the procedure followed in connection with the purported marriage. See POMS GN 00305.055. Rather, the parties never attempted to register their purported marriage with any state. Indeed, according to the record, they sought only to make “the marriage official in [their] gypsy culture.”

Similarly, Claimant cannot show that she held a good faith belief in the existence of a valid marriage at its inception because she never sought to obtain, authenticate, and return a marriage license as required by California law. See Cal. Fam. Code § 306. Indeed, as indicated by the NH’s February 1, 2010 Supplemental Security Income application, the couple merely believed that they had “lived together so long that [they were] considered to be legally married[.]” However, even if Claimant held a good faith belief that Nevada permits common law marriage, her mistaken belief cannot overcome the requirements of Nevada law. See Nev. Rev. Stat. § 122.010(2). The putative spouse doctrine is intended only to protect parties without knowledge of factual or legal impediments to marriage. See Cal. Fam. Code § 2251; Nev. Rev. Stat. § 122.090; see also POMS GN 00305.085. Therefore, it is inapplicable here.

In sum, a Nevada court would not acknowledge Claimant’s out-of-state “gypsy marriage” to the NH as a legally valid marriage. Further, because Nevada does not recognize common law marriage, Nevada courts would find Claimant ineligible to inherit from the NH’s intestate estate as his spouse.

CONCLUSION

Because Claimant failed to prove a valid ceremonial marriage, or a good faith belief that her ceremonial marriage was valid, she is not entitled to widow’s benefits on the NH’s record. See 20 C.F.R. §§ 404.330, 404.345, 404.346.


Footnotes:

[1]

. The NDPA does not limit domestic partnerships to same-sex couples, nor does it distinguish between same-sex and opposite-sex couples in conferring rights to domestic partners. See Nev. Rev. Stat. §§ 122A.100, 122A.200.

[2]

. We offer no opinion as to whether Claimant meets the other criteria for widow’s insurance benefits.

[3]

. The NH reported his date of birth as June 1951, and Claimant’s date of birth as August 1952, in his DIB and SSI applications. However, Claimant listed her date of birth as August 1951, and the NH’s date of birth as July 1954, in her application for widow’s benefits. This discrepancy is not dispositive, however, because both parties met the minimum age of marriage for California and Nevada, which is 18 years of age, according to all reported birth dates. See Cal. Fam. Code § 301; Nev. Rev. Stat. § 122.020.

[4]

. State law putative marriages should be distinguished from the Federal deemed marriage provision described in POMS GN 00305.055. POMS GN 00305.0085.

[5]

. Additionally, an exhaustive review of Nevada case law does not reveal what law Nevada would apply in determining the validity of an out-of-state marriage.

[6]

. Only a county clerk may issue a marriage license, which must be presented to the person solemnizing the marriage. Cal. Fam. Code §§ 350, 421. The person solemnizing a marriage shall provide the requisite information and sign the license, and must return the authenticated license to the county recorder within 10 days after the ceremony. Cal. Fam. Code §§ 422-23.

[7]

. The failure of a nonparty to the marriage to comply with the statutory requirements does not invalidate the marriage, such as would be the case if the person performing the marriage ceremony did not return the authenticated certificate of registry to the county recorder. Cal. Fam. Code § 306; see also In re Estate of DePasse, 97 Cal. App. 4th at 106 (explaining that “a failure by the person solemnizing the marriage to return the certificate of registry would not invalidate the marriage”).

[8]

. Pursuant to the POMS, should the parties learn of the defect during their marriage, they must undertake, within a reasonable time, to legalize their marriage in order to maintain their putative spouse status. POMS GN 00305.085.B.1.3.

[9]

. Pursuant to POMS GN 00305.030, where a ceremonial marriage is alleged and accompanied by cohabitation and repute, a presumption arises that a marriage existed. POMS GN 00305.030.A. However, this presumption only applies when preferred and secondary proof of marriage is unobtainable. Id. Moreover, the presumption is rebuttable with evidence to the contrary. See id. Here, the presumption is rebutted due to the affirmative evidence that the parties never formally executed or registered their marriage through the procedures required under State law.

[10]

. The NH reported his date of birth as June 1951, and Claimant’s date of birth as August 1952, in his DIB and SSI applications. However, Claimant listed her date of birth as August 1951, and the NH’s date of birth as July 1954, in her application for widow’s bene