TN 7 (04-16)

PR 05630.120 Dominican Republic

A. PR 16-073 Opinion on Common-Law Marriage in Dominican Republic (death case)

Date: January 27, 2016

1. Syllabus

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.

ANALYSIS1

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.

2. CONCLUSION

The claimant’s relationship with the NH would not be recognized as a valid marriage, and the claimant does not have the same intestate succession rights as a widow of the NH under the law of the Dominican Republic. Thus the agency cannot deem the couple married for title II purposes.

Leah Golshani

General Attorney

Office of Program Law, Office of the General Counsel


Footnotes:

[1]

Our discussion of the law of the Dominican Republic is based in part on information we received from the Library of Congress.

[2]

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

[3]

The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942). The recognition of heterosexual unions performed in other jurisdictions does not appear to violate a strong public policy of the District.

[4]

CONSTITUCIÓN DE LA REPÚBLICA DOMINICANA [DOMINICAN REPUBLIC CONSTITUTION] art. 55(5), GACETA OFICIAL [OFFICIAL GAZETTE] No. 10805, June 13, 2015, available on a government-maintained website at http://www.consultoria.gov.do/constituciones%201844-2008/Constitucion%20 2015.pdf, archived at http://perma.cc/VD29-XTG7.

[5]

CÓDIGO CIVIL DE LA REPÚBLICA DOMINICANA [CIVIL CODE FOR THE DOMINICAN REPUBLIC], arts. 767, 769–771, available on the Dominican Republic Supreme Court website, at http://www.poderjudicial.gob.do/ documentos/PDF/codigos/Codigocivil.pdf, archived at http://perma.cc/ZE4Y-NEWW.

[6]

Press Release, Dominican Senate, Senadores continúan lectura Código Civil que legaliza uniones libres y autoriza a ministros evangélicos a celebrar matrimonios [Senators Continue Analyzing Amendment to Civil Code that Legalizes Free Unions] (Oct. 2015), http://www.elsenadodigital.com/2015/10/senadores-continuan-lectura-codigo.html, archived at http://perma.cc/CS7L-G4R2.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505630120
PR 05630.120 - Dominican Republic - 04/12/2016
Batch run: 04/12/2016
Rev:04/12/2016