The couple’s non-marital relationship recognized under Dominican Republic law is not
recognized as a valid marriage. The claimant does not have the same status as a legally
married spouse of the NH for purposes of intestate inheritance. Therefore, the agency
would not deem her the NH’s widow for the purpose of survivor’s benefits.
Opinion
QUESTION PRESENTED
Whether claimant C~ is entitled to survivor’s benefits under title II of the Social
Security Act (Act) as a widow of the deceased number holder (NH) R~ based on their
“common-law” union in the Dominican Republic. If they cannot be considered validly
married, can the agency deem the claimant the NH’s widow for the purpose of determining
entitlement as a spouse?
SHORT ANSWER
The claimant’s non-marital relationship to the NH may have been a “free union” recognized
under Dominican Republic law, but was not recognized as a valid marriage. To the extent
that the Dominican Republic recognizes non-marital “free unions,” the claimant does
not have the same status as a legally married spouse of the NH for purposes of intestate
inheritance. Therefore, the agency would not deem her the NH’s widow for the purpose
of survivor’s benefits.
BACKGROUND
The claimant and NH resided in the Dominican Republic and alleged that they were in
a “common-law” marriage since 1980. The couple had two children and held themselves
out as husband and wife. They were never officially married.
The NH died on May XX, 2011. On May XX, 2013, the claimant applied for widow’s insurance
benefits on the NH’s record.
ANALYSIS[1]
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. [2] 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 Was Not Validly Married to the NH under Dominican Republic Law
Under the law of the District of Columbia, the validity of a marriage is determined
by the law of the jurisdiction where the marriage was entered into.[3] 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 alleges she lived together with
the NH in a “common law marriage” in the Dominican Republic. Accordingly, to determine
whether the claimant was validly married to the NH for Social Security purposes, we
must determine whether their relationship was a valid marriage under the law of the
Dominican Republic.
Here, while the couple held themselves out as husband and wife, the claimant does
not allege an official marriage, but a “common-law” marriage. The Dominican Republic
recognizes certain heterosexual unions that are not formalized by marriage, which
are sometimes called “free unions.”[4] These are distinct from marriage. Accordingly, while their partnership may have some
legal recognition, they were not “married,” and therefore District of Columbia law
would not recognize the couple as “married.” Thus, the claimant cannot qualify as
the NH’s widow for Social Security purposes on the basis of a valid marriage.
a. The Claimant Does Not Have the Same Status as a Widow of the NH under Dominican Republic
Intestacy Law
Since the claimant was not married to the NH, the agency will 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, intestate inheritance rights are determined by the
law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). Here, the NH was domiciled in the Dominican Republic.
Accordingly, to determine whether the claimant has the requisite status with respect
to inheritance of the NH’s intestate property, we apply the law of the Dominican Republic.
The claimant and the NH arguably had a “free union” recognized under Dominican Republic
law. Even if so, partners in a free union do not have the same intestacy rights as
those of married spouses. The Civil Code for the Dominican Republic provides for the
intestate inheritance rights and duties of spouses only.[5] There are no laws establishing, or court decisions addressing, the intestate succession
rights of partners in a free union. The government is considering a comprehensive
reform of their laws, including granting inheritance rights to individuals who are
partners in a free union.[6] As of this time, however, there is no indication that such proposals have become
law.
Accordingly, the claimant cannot qualify as the NH’s widow based on the laws of intestate
succession, and the agency will not deem her to be the widow of the NH for the purpose
of survivor’s benefits.