Issue: Whether ~DW (the claimant) is the widow of ~DB, the deceased number holder
(NH), for purposes of the entitlement to widow’s benefits under title II of the Social
Security Act (Act). The claimant presented evidence of a marriage ceremony in California
prior to the State’s legal recognition of same-sex marriages. The claimant also presented
an Oregon Public Employee Benefit Board (PEBB) Affidavit of Domestic Partnership document.
You asked if the agency could find the claimant and the NH were legally married in
the California ceremony. If not, could the agency find the couple had a common law
marriage in California or Oregon? If no marriage can be found, could the agency deem
the couple married based on their Oregon PEBB Affidavit of Domestic Partnership?
No. The claimant is not the NH’s widow based on the marriage ceremony held in California
prior to the State’s legal recognition of same-sex marriages. In addition, neither
California nor Washington permit common law marriage, so the claimant cannot be considered
the NH’s widow on that basis. Finally, we believe the courts of Oregon would find
that claimant cannot inherit as NH’s widower under Oregon law based on the Oregon
PEBB Affidavit of Domestic Partnership document. Accordingly, we believe the agency
would be justified in finding claimant is not NH’s widow or deemed widow under title
II and therefore is not entitled to widow’s benefits on NH’s earnings record.
SUMMARY OF FACTS
In May 2001, before California law recognized same-sex marriages, the claimant alleges
that she and the NH participated in a ceremonial marriage officiated by Reverend ~R
G, a minister of the United Churches of Religious Science in Santa Rosa Sonoma County
California. The claimant provided a certificate of marriage with the date of the ceremony,
which she had notarized in California in November X, 2014. The claimant also provided
an Oregon PEBB Affidavit of Domestic Partnership document signed in November XX, 2005.
In July 2010, the NH died in Oregon. Her death certificate lists Oregon as her place
of domicile, and describes her marital status as never married. The claimant then
applied for surviving spouse benefits in Oregon. The claimant stated that her marriage
was not legally recognized in California. She also said that she and the NH planned
to register “with the state as domestic partners,” but did not do so because her daughter,
and then the NH, became sick and both died.
I. Applicable Law
A. Federal Statute and Regulation
A claimant may be entitled to widow’s insurance benefits if she is the widow of an
individual who died fully insured and she and the insured were married for at least
nine months immediately prior to the insured’s death. Act § 202(e)(1); 20 C.F.R.
§ 404.335(a); Program Operations Manual System (POMS) RS 00207.001A.1.b.1. A claimant can establish that she is the widow of an insured individual if the
courts of the State where the insured was domiciled when she died would find that
the claimant and insured were validly married. If the claimant was not validly married,
we must examine if the claimant has the same status as a widow with respect to taking
the insured individual’s personal property through State intestacy laws. Act § 216(h)(1)(A);
20 C.F.R. §§ 404.335(a), 404.345; POMS GN 00305.001A.2.a; POMS RS 00207.001A.1.a.1.
Thus, if there is no valid marriage, but the claimant alleges a non-marital legal
relationship (NMLR), such as a domestic partnership or civil union, as the basis for
entitlement, the agency may deem the claimant and NH married if: (1) the NMLR is valid
in the State where it was established; and (2) the State of the NH’s domicile recognizes
the NMLR as equivalent to a marriage, or because under State intestacy law, the parties
to the NMLR can inherit a spouse’s share of the of each others personal property,
should one party die. Act § 216(h)(1)(A); 20 C.F.R. § 404.345; cf. POMS GN 00210.004A; POMS GN 00305.005 (determining marital status).
B. Oregon Law
In May 2014, the United States District Court for the District of Oregon declared
unconstitutional Oregon’s previous ban on in-state same-sex marriages and non-recognition
of out-of-state same-sex marriages. Geiger v.
Kitzhaber, 994 F. Supp. 2d 1128 (D. Or. 2014). Thus, as of the date of the court’s order, Oregon
began issuing same-sex marriage licenses and recognizing out-of-state same-sex marriages.
In 2007, the Oregon State Legislature enacted the Oregon Family Fairness Act,allowing
same-sex couples to enter into registered domestic partnerships effective February
4, 2008. See 2007 Oregon Laws Ch. 99 (H.B. 2007), §§ 1-9 (codified at Or. Rev. Stat. §§ 106.300-106.340).
These domestic partnerships “extend benefits, protections and responsibilities to
committed same-sex partners and their children that are comparable to those provided
to married individuals and their children by the laws of this state.” Or. Rev. Stat.
§ 106.305(5); see also Or. Rev. Stat. § 106.340. As a result, Oregon domestic partnerships
convey spousal inheritance rights. Or. Rev. Stat. § 106.340; see also POMS GN 00210.004.D. Thus, if an Oregon domestic partnership meets the criteria in Or. Rev. Stat. §
106.325, the agency can find the registered domestic partnership qualifies as marital
relationships for SSA benefits purposes. POMS GN 00210.004D.
To enter into a registered domestic partnership under Oregon law, individuals must
file a Declaration of Domestic Partnership on which each individual shall: (1) state
that she or he is at least 18 years old and capable of entering into a domestic partnership;
(2) state whether the individual resides in Oregon; (3) provide a mailing address;
(4) state that she or he consents to the jurisdiction of Oregon courts for any proceeding
related to the partners’ rights and obligations; and (5) indicate the individual’s
name after domestic partnership. Or. Rev. Stat. § 106.325. Both partners must sign
and notarize the declaration. Id
C. California Law
Historically, same-sex marriage first became legal in California on June 16, 2008,
when the California Supreme Court held that a State law barring same-sex marriages
was contrary to the State Constitution. See In re Marriage Cases, 43 Cal. 4th 757 (Cal. 2008). However, same-sex marriages were
again barred beginning November 5, 2008, after the passage of Proposition 8, a State
constitutional amendment. See Strauss v. Horton, 46 Cal. 4th 364, 397-98 (Cal. 2009). On August 4, 2010, the United States District
Court for the Northern District of California held that Proposition 8 was unconstitutional.
See Perry v.
Schwarzenegger, 704 F. Supp.2d 921, 1004 (N.D. Cal. 2010). The United States Court of Appeals for
the Ninth Circuit imposed a stay pending appeal, and later affirmed the district court’s
decision. See Perry v. Brown, 671 F.3d 1052, 1096 (9th Cir. 2012); Perry v. Schwarzenegger, 2010 WL 3212786 (9th Cir. Aug. 16, 2010). On June 26, 2013, the United States Court
of Appeals for the Ninth Circuit lifted its stay. See Perry v. Brown, 725 F.3d 968 (9th Cir. 2013).
California also has various requirements that must be met before a marriage is valid
under State law. Cal. Fam. Code §§ 300 et seq. In part, the parties must obtain a
marriage license from a county clerk, consent and solemnize the marriage as provided
by law, and register the license with the country recorder. Cal. Fam. Code §§ 300(a)-(b).
A marriage license issued by a county clerk does not become a marriage certificate
until it is registered with the county recorder. Id. at § 300(b).
A. Oregon Would not Recognize an Invalid California Marriage
When considering whether two individuals were spouses for the entitlement to survivor
benefits, the agency looks to the laws of the State where the insured individual was
domiciled when he or she died. Because the NH was domiciled in Oregon at the time
of her death, we apply Oregon law to determine if she and the claimant were spouses.
20 C.F.R. § 404.335(a) (referencing 20 C.F.R. § 404.345).
Oregon recognizes any marriage that is valid in the State it was entered into. Garret,
449 P.2d at 858. The claimant and the NH participated in a ceremonial marriage in
California in 2001, seven years before same-sex marriage first became legal in California.
See In re Marriage Cases, 53 Cal. 4th 757 (Cal. 2008). On June 26, 2015, the United States
Supreme Court held that all same-sex couples may exercise the fundamental right to
marry under the United States Constitution. See Obergefell v. Hodges, 576 U.S. ---, 135 S. Ct. 2584, 2604-05 (2015). The Court held State laws invalid
to the extent they exclude same-sex couples from civil marriage on the same terms
and conditions as opposite-sex couples. Id., 135 S. Ct. at 2605. Pursuant to Harper v.
Va. Dep’t of Taxation, 509 U.S. 86, 94-98 (1993), the agency should give Obergefell full retroactive effect in all cases still open on direct review and as to all events,
regardless of whether such events predate or postdate Obergefell. As a result, the agency considers state-law same-sex-marriage bans, whether based
on state constitutional or statutory provisions or on case law, void and ineffective.
See POMS GN 00210.002A (stating the agency will recognize a valid same-sex marriage as of the date of the
marriage, including during periods when the number holder’s state of domicile did
not recognize same-sex marriages).
Therefore, while we cannot consider a state’s ban on same-sex marriage as invalidating
a marriage, we still must consider whether a marriage that occurred prior to the date
same-sex marriage became legal in California otherwise satisfies the criteria for
a valid California marriage, and thus could be recognized by Oregon.
In California, a marriage is valid only if the parties obtain a marriage license from
a county clerk, consent and solemnize the marriage as provided by law, and register
the license with the county recorder. Cal. Fam. Code §§ 300(a)-(b). A marriage license
issued by a county clerk does not become a marriage certificate until it is registered
with the county recorder. Id. at § 300(b). Here, the claimant and the NH consented and had a ceremony in Santa
Rosa, California; received a document that purports to be a “marriage certificate”
(herein after “souvenir certificate”) from the officiant of their ceremony (Reverend
~R G), and later notarized the souvenir certificate in Sonoma County, California.
As Santa Rosa is located in Sonoma County, there must be evidence that a marriage
license was obtained from a Sonoma county clerk and registered with the county recorder,
at the time of their marriage. Although the souvenir certificate was notarized in
Sonoma County, California, on November X, 2014, there is no evidence that a license
was obtained from a county clerk or registered. Thus, the marriage is not valid
under California law and therefore the courts of Oregon would not recognize it as
valid under Oregon law.
B. Oregon Public Employee Benefit Board Affidavit of Domestic Partnership
Because the claimant and NH did not enter into a valid marriage, we must examine whether
the Oregon PEBB Affidavit of Domestic Partnership, signed by the Claimant and the
NH, established a registered domestic partnership under Oregon law for basis of entitlement
to social security benefits. An Oregon domestic partnership that meets the criteria
in Or. Rev. Stat. § 106.325 qualifies as equivalent to a marital relationships under
Oregon law and thus for SSA benefits purposes. POMS GN 00210.004D
To enter into a domestic partnership under Or. Rev. Stat. § 106.325, individuals
must file a Declaration of Domestic Partnership on which each individual shall:
a) state that she or he is at least 18 years old and capable of entering into a domestic
b) state whether the individual resides in Oregon;
c) provide a mailing address;
d) state that she or he consents to the jurisdiction of Oregon courts for any proceeding
related to the partners’ rights and obligations;
e) indicate the individual’s name after domestic partnership;
f) sign the form with a declaration that representations made on the form are true,
correct and contain no material omissions of fact to the best knowledge and belief
of the individual; and
g) have a notary public acknowledge the individual’s signature.
Here, the Oregon PEBB domestic partnership document provided by the claimant does
not comply with all of the criteria for a Declaration of Domestic Partnership required
by Or. Rev. Stat. § 106.325. In particular, it does not appear to be on the requisite
form required by the Oregon Health Authority pursuant to Or. Rev. Stat. § 106.320.
Instead, it is on an Oregon PEBB form.
We have found no case law stating that an Oregon PEBB domestic partnership is equivalent
to a domestic partnership formed pursuant to Or. Rev. Stat. § 106.325. With respect
to the criteria in Or. Rev. Stat. §106.325(1), and (2), a document of Domestic Partnership
must be filed with a county clerk and registered. Once registered, the county clerk
will return a copy of the registered form and a Certificate of Registered Domestic
Partnership to the partners. The document claimant provided does not appear to have
been filed or registered with a county clerk. In addition, the requirements in Or.
Rev. Stat. §106.325(3) and (4,) contemplate a formal dissolution of the domestic partnership,
with the consent of the court. The document the claimant supplied the agency merely
requires a statement of termination of the domestic partnership with “payroll” or
their “personal representative.” Finally, the signatures are not notarized, as required
by Or. Rev. Stat. § 106.325(5)(g). Thus, although claimant and NH had a domestic partnership
for PEBB purposes, it does not meet the criteria of a registered domestic partnership
under Oregon domestic partnership law at Or. Rev. Stat. §106.325. Therefore, the claimant
cannot inherit as NH’s spouse under Oregon and thus SSA find a deemed marriage for
purposes widow’s benefits.
The claimant is not the NH’s widow based on the marriage ceremony held in California
prior to the State’s legal recognition of same-sex marriages. In addition, neither
California nor Washington permit common law marriage, so the claimant cannot be considered
the NH’s widow, based on a same-sex common law marriage. Further, we believe the courts
of Oregon would find that claimant cannot inherit as NH’s widower under Oregon law
based on the Oregon PEBB Domestic Partnership document as it is not equivalent to
a registered domestic partnership under Oregon domestic partnership law at Or. Rev.
Stat. §106.325. Thus, the agency cannot find a deemed marriage based on the PEBB Domestic
Partnership. Accordingly, we believe the agency is justified in finding that claimant
is not NH’s widower or deemed widower under Title II and therefore Claimant is not
entitled to WIB on NH’s earnings record.
 You did not ask whether claimant could be deemed the widow of the NH based on
their Oregon PEBB Affidavit of Domestic Partnership document. However, we will also
address this issue.
 In addition to establishing that she is the widower of the insured, the claimant
must establish he meets the other criteria for entitlement to widower’s benefits.
See 20 C.F.R. § 404.335. You have not asked, and we have not analyzed, whether the claimant
meets these other requirements.
 Oregon does not permit common-law marriages. In Re Hanlon, 557 B.R. 801, 806 (U.S.
Bankr. Ct., D. Or. 2016) (citing Huard v. McTeigh, 232 P. 658, 663 (Or. 1925); Johnston
v. Georgia– Pac. Corp., 581 P.2d 108, 109 (Or. App. 1978)). Therefore. we will not
address whether claimant and NH entered into a common law marriage in Oregon.
 California does not permit common law marriage. Burkes v. Apfel, 233 F.3d 1220, 1225 (10th Cir. 2000) (citing Tatum v. Tatum, 241 F.2d 401 (9th Cir.1957)). Therefore, we will not address whether claimant and
NH entered into a common law marriage in California.
 Pursuant to POMS GN 00301.050 Evaluating the Validity of Documents and Records,
souvenir certificates may “[l]ack of a state or county seal or certification” and
“are not acceptable as preferred evidence of… marriage.”
 As previously explained, infra, California did not permit same-sex marriage at
this time. However, the couple could have entered into a California domestic partnership.
Beginning January 2000, California permitted any two same-sex individuals to enter
a registered domestic partnership if (1) neither person had an ongoing marriage or
domestic partnership with someone else; (2) the individuals were not related by blood;
(3) both individuals were at least 18 years of age; and (4) both individuals were
capable of consenting to the domestic partnership. Cal. Fam. Code § 297(b); see POMS
GN 00210.004(D)(5). Registered domestic partners in California have the same rights, protections,
benefits, responsibilities, obligations, and duties “as are granted to and imposed
upon spouses.” Cal. Fam. Code § 297.5(a). An individual in a registered domestic partnership
has a right to inherit intestate from the other partner the same as a surviving spouse.
Cal. Fam. Code § 297.5(c). California’s domestic partnership requirements and benefits,
which are comprehensive, are substantially similar to Oregon’s. Compare Or. Rev. Stat.
§§ 106.315 & 106.340, and Cal Fam. Code § 297.5. Therefore, Oregon would recognize
a validly formed California domestic partnership for inheritance purposes.
 In addition to these criteria, individuals are precluded from entering a domestic
partnership when: (1) either party had another partner or spouse living at the time
of the domestic partnership; (2) the parties were first cousins or any nearer kin
to each other; or (3) either party was incapable of consenting to the contract for
want of age or understanding. Or. Rev. Stat. §106.315. Here, it appears that the claimant
and the NH were not precluded from entering a domestic partnership for any of these
 The website for the Oregon PEBB (which contracts for and administers health benefits
for eligible state employees), contemplates that a registered domestic partnership
under State law differs from one “by affidavit.” According to the PEBB website: Our
benefit program accommodates two types of domestic partnership: by affidavit and by
registered certificate. 1. Domestic partnership by affidavit is established between
two individuals of same or opposite sex when they attest on a PEBB affidavit to the
relationship as described in our Summary Plan Description. 2. Domestic partnership
by registered certificate is established between two individuals of the same sex by
Oregon Revised Statute. https://www.oregon.gov/oha/pebb/Benefits/domestic-partners.pdf (last visited on March 31, 2020). Thus it appears that a domestic partnership for
purposes of Oregon PEBB is different from a domestic partnership under the Oregon
domestic relationship law at Or. Rev. Stat. § 106.325.