Can the agency recognize T~ (Claimant) to be the spouse of W~ (Number Holder or NH),
based on their same-sex marriage entered into in Denmark, for purposes of entitlement
to surviving spouse’s benefits and the lump sum death payment (LSDP)?
Yes. As discussed below, we believe there is legal support for the agency to recognize
that Claimant and NH were validly married in Denmark. Thus, we believe there is support
for the agency to find that Claimant is NH’s surviving spouse as of May XX 1998, for
Title II purposes.
SUMMARY OF EVIDENCE
The evidence includes a marriage certificate issued in Denmark. The marriage certificate
states that Claimant and NH were married on May XX, 1998, in Gentofte Rådhus. It was
signed by an official of the marriage authority of Gentofte Kommune, a municipality,
on September XX, 2012.
You indicated that the couple continued to live in Denmark until NH and Claimant arrived
in the United States on July XX, 2014. Claimant’s U.S. permanent resident card shows
that he established legal permanent residence in the United States on that date. On
August X, 2014, NH died in Indianapolis, Indiana. NH’s death certificate listed an
address in Thorntown, Indiana.
You indicated that Claimant returned to Europe after NH died, and that in June 2017,
Claimant moved to Chicago, Illinois. Claimant filed an application for widower’s insurance
benefits on NH’s account and the lump sum death payment in September 2018. In his
application, Claimant stated that he and NH were married on May XX, 1998.
Social Security Law and Policy
Under Title II of the Social Security Act (Act), a claimant may be entitled to widow(er)’s
insurance benefits on a deceased insured individual’s account if, among other things,
the claimant is the widow(er) of the insured individual and their marriage lasted
nine months before the insured individual died. See 42 U.S.C. §§ 402(e)(1), (f)(1),
416(a)(2), (c), (g); 20 C.F.R. § 404.335. Under Title II of the Act, the LSDP, which
is a one-time payment of $255, may be paid to a deceased insured individual’s widow(er)
who was living in the same household with the insured at the time of his death. See
42 U.S.C. § 402(i); 20 C.F.R. §§ 404.390, 404.391.
The agency considers a claimant to be an insured’s widow(er) if the courts of the
State in which the insured resided at the time of death would find that the claimant
and the insured were validly married at the time the insured 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’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20
C.F.R. §§ 404.335(a), 404.344, 404.345. The agency recognizes “same-sex marriages
. . . established in foreign jurisdictions as marriages for Title II” entitlement
purposes. POMS GN 00210.006.A.1; see also POMS GN 00210.006.B (explaining the steps the agency takes to determine the validity of foreign same-sex
As pertinent here, 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 of death. See 42 U.S.C. § 416(h)(1)(A)(i). If the insured is 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. As explained in detail below, the current information is insufficient to determine
whether NH intended to make Indiana his domicile. In any event, it is not necessary
to determine whether NH was domiciled in Indiana or Denmark at the time of his death,
because, as we will explain, Claimant would meet the relationship requirement under
either Indiana or District of Columbia law since both states recognize foreign marriages,
as long as the marriage was valid in the country it was entered into. Thus we will
first examine the law of Denmark.
Validity of Marriage Established in Denmark
The agency obtained advice from the Library of Congress regarding the validity of
same-sex marriage in Denmark in September 2018. In Denmark, marriages are governed by the Marriage Act. In addition, Denmark first allowed registered domestic partnerships in 1989 via the
Act on Registered Domestic Partnerships. Effective June 2012, Denmark amended the Marriage Act to allow marriage “between
two persons of the opposite sex and between two persons of the same sex.” This amendment repealed the Act on Registered Domestic Partnerships. As a result, couples who previously registered for a same-sex domestic partnership
may transform their partnership into a marriage. Couples who do so receive a marriage certificate from the municipality.
Here, Claimant submitted a marriage certificate from the marriage authority in Gentofte
Kommune, a marriage municipality in Denmark. The marriage certificate includes two
dates. The first date, listed under “Date of Marriage,” is May XX, 1998. Claimant
stated in his application that he was married to NH on this date. However, while Denmark
recognized same-sex domestic partnerships at that time, it did not recognize same-sex
marriages until 2012. Because this date also appears on the 2012 marriage certificate,
it appears likely that the date represents the time that NH and Claimant registered
for a domestic partnership.
The second date, September XX, 2012, appears to represent the date NH and Claimant
transformed their domestic partnership into a marriage. This date was several months
after Denmark amended the Marriage Act to recognize same-sex marriage. As noted above,
couples who transform a same-sex domestic partnership into a marriage receive a marriage
certificate from the municipality. As the couple transformed their same-sex domestic
partnership to a marriage and the government issued a Marriage Certificate listing
May XX, 1998, as the “Date of Marriage,” we believe Denmark recognizes the couple’s
marriage as valid from May XX, 1998 until NH’s death.
NH’s Domicile Is Uncertain but Ultimately Unnecessary to the
The United States Supreme Court has held that domicile “is established by physical
presence in a place in connection with a certain state of mind concerning one’s intent
to remain there.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48
(1989); see also State Election Bd. v. Bayh, 521 N.E.2d 1313, 1317 (Ind. 1988) (domicile
is “the place where a person has his true, fixed, permanent home and principal establishment,
and to which place he has, whenever he is absent, the intention of returning”). Consistent
with the U.S. Supreme Court’s definition, the agency determines one’s domicile using
the dual prongs of physical presence and intent. An individual’s domicile is the place
where he has his “true, fixed, and permanent home to which he/she intends to return
whenever away.” POMS GN 00305.001.B.2; see also 20 C.F.R. § 404.303 (“Permanent home means the true and fixed home
(legal domicile) of a person” and is the place a person intends to return whenever
he is absent). Everyone has a domicile and “can have only one at a time.” POMS GN 00305.001.B.2. To change domicile, a person must intend to make a home in the new place permanently
or for an indefinite period and be physically present in the new place while having
that intent. POMS GN 00305.001.A.2.c.; see also Bayh, 521 N.E.2d at 1317 (“A change of domicile requires an actual
moving with an intent to go to a given place and remain there.”).
The current information is insufficient to determine whether NH intended to make Indiana
his domicile. NH and Claimant lived in Denmark from at least 1998 until they came
to Indiana on July XX, 2014. Claimant established legal residence in the United States
on that date. It is unknown why NH came to Indiana or whether he intended to stay
in the State. NH’s death certificate listed an Indiana address as a mailing address.
However, Claimant returned to Europe after NH’s death on August X 2014. Claimant later
moved to Chicago, Illinois in June 2017. In any event, it is not necessary to determine
whether NH was domiciled in Indiana or Denmark at the time of his death, because Claimant
would meet the relationship requirement under either Indiana or District of Columbia
A. Indiana Law
At the time of NH’s death on August X 2014, Indiana law prohibited same-sex marriage:
“A marriage between persons of the same gender is void in Indiana even if the marriage
is lawful in the place where it is solemnized.” Ind. Code § 31-11-1-1(b) (2014). However,
this provision was held unconstitutional and Indiana has permitted same-sex marriage
since October 2014. See Baskin v. Bogan, 12 F. Supp. 3d 1144, 1162 (S.D. Ind. 2014),
aff’d, 766 F.3d 648 (7th Cir. 2014), cert. denied, 135 S. Ct. 316 (2014). In addition,
in June 2015, the United States Supreme Court held that same-sex couples may exercise
the fundamental right to marry in all States, and “that there is no lawful basis for
a State to refuse to recognize a lawful same-sex marriage performed in another State
on the ground of its same-sex character.” See Obergefell v. Hodges, 135 S. Ct. 2584,
In Indiana, “the general rule of law is that a marriage valid where it is performed
is valid everywhere.” McPeek v. McCardle, 888 N.E.2d 171, 174 (Ind. 2008). Here, it
appears that NH and Claimant transformed their domestic partnership into a valid marriage
under Danish law on September XX, 2012. Thus, if NH was domiciled in Indiana at the
time of his death, we believe that an Indiana court would recognize his Danish marriage
to Claimant as valid at the time he died. Accordingly, we believe the evidence would
be sufficient to establish that Claimant is NH’s widower for Title II purposes. 42
U.S.C. § 416(h)(1)(A)(i).
B. District of Columbia Law
Alternatively, if NH did not establish legal domicile in Indiana before his death,
then he remained domiciled in Denmark. The agency applies District of Columbia (D.C.)
law when the insured individual was domiciled outside the United States. See 42 U.S.C.
§ 416(h)(1)(A)(i); 20 C.F.R. § 404.345.
Since 2010, D.C. has recognized same-sex marriage and applied the rights and responsibilities
relating to marital or familial relationships to same-sex marriages. See D.C. Code
§ 46-401. Additionally, since 2009, D.C. has recognized a marriage “legally entered
into in another jurisdiction between 2 persons of the same sex that is recognized
as valid in that jurisdiction,” so long as the marriage is not expressly prohibited
by a narrow set of exceptions or deemed illegal. D.C. Code § 46-405.01.
As noted above, it appears that NH and Claimant transformed their domestic partnership
into a valid marriage under Danish law. There is no indication that their marriage
was prohibited or deemed illegal under D.C. law. See D.C. Code §§ 46-401.01-46.405.
Thus, if NH was domiciled in Denmark at the time of his death, we believe that a D.C.
court would recognize his Danish marriage to Claimant as valid at the time of his
death. Accordingly, we believe the evidence would be sufficient to establish that
Claimant is NH’s widower for Title II purposes. 42 U.S.C. § 416(h)(1)(A)(i).
Although it is uncertain whether NH was domiciled in Indiana or Denmark at the time
of his death, for the reasons discussed above, we believe that the D. C. and Indiana
courts would find that Claimant has proven by clear and convincing evidence that he
was validly married to the NH under D.C. or Indiana law from May XX, 1998 until the
NH’s death on August X, 2014. This marriage meets the Act’s nine-month marriage duration
requirement for widow(er)’s benefits. Further, the evidence shows that Claimant was
living in the same household as NH at the time of his death. Thus, we believe that
the agency could reasonably find that Claimant was NH’s widow(er) for purposes of
widow(er)’s insurance benefits and the LSDP.