The claimant, F~, applied for widower’s benefits on the record of S~, the deceased
number-holder (NH). The claimant alleges that he and the NH lived together in New
Hampshire from 1963 until the NH died in 2016, but were never ceremonially married.
The question presented is whether the claimant is NH’s widower for the purposes of
entitling the claimant to benefits on the NH’s record under the Social Security Act
Yes. We believe there is support for the agency to find that the claimant is the NH’s
widower for purposes of determining his entitlement to benefits as the NH’s surviving
On September XX, 2016, the claimant applied for widower’s benefits on the NH’s record.
In his form SSA-754, he alleged that he and the NH began living together in New Hampshire
in 1963, at which point they “became exclusive forever,” and remained together until
the NH died on July XX, 2016. Neither of them had been married previously. The claimant
also told SSA that he and the NH had owned property, vehicles, and bank accounts together,
and had owned and run several businesses together. In addition, he identified several
neighbors and business associates who could confirm the relationship.
In support of these statements, the claimant submitted: (1) a mortgage document showing
that he and the NH purchased their current home together in 1986; (2) the title to
a car purchased in 2014, listing them both as owners; and (3) a July 2016 bank statement
for an account in both their names. In addition, multiple family members completed
form SSA-753 in support of the claimant’s application. Each of the siblings responded
“yes” to the question, “Did (do) you consider them husband and wife,” although the
claimant’s sister and brother both crossed out “husband and wife,” replacing it with
“a married couple,” and “life partners,” respectively. Each of the siblings also reported
that they saw the couple on holidays, and the claimant’s sister stated that she considered
the NH “part of our family.”
The claimant stated that he and the NH had initially referred to the other as a “friend,”
but that “everyone could tell otherwise,” and that more recently, each had referred
to the other as his partner. He further stated that he and the NH had intended to
get formally married, but that same-sex marriage had not become legal in New Hampshire
until January 2010, at which time they “continued to talk about it but never got around
to it.” They were still living together in New Hampshire when the NH died in July
2016; his death certificate lists his domestic status as “never married/civil union.”
A. Federal Law
To qualify for widower’s benefits under the Act, a claimant must show, among other
things, that he is the insured’s widower. See 42 U.S.C. § 402(f)(1). As pertinent
here, the Act defines a widower as the surviving husband of an individual who was
married to the individual for at least nine months prior to the date of the individual’s
death. 42 U.S.C. § 416(g)(1)(E).
Under the Act:
An applicant is the . . . widower . . . of a fully or currently insured individual
for purposes of this subchapter if . . . the courts of the State in which [the insured
individual] was domiciled at the time of death . . . would find that such applicant
and such insured individual were validly married at the time . . . such insured individual
. . . died.
If such courts would not find that such applicant and such insured individual were
validly married at such time, such applicant shall, nevertheless be deemed to be the
. . . widower . . . of such insured individual if such applicant would, under the
laws applied by such courts in determining the devolution of intestate personal property,
have the same status with respect to the taking of such property as a . . . widower
. . . of such insured individual.
42 U.S.C. § 416(h)(1)(A); see also 20 C.F.R. § 404.345.
Here, the NH resided in New Hampshire at the time of his death. Therefore, the agency
must apply New Hampshire law to determine whether the claimant and the NH were validly
married at the time of the NH’s death or whether the agency would deem the claimant to be
NH’s widower for intestate succession. Id.
With respect to the agency’s application of state marriage laws, we note that in Obergefell
v. Hodges, 135 S. Ct. 2584, 2604-05 (2015), the Supreme Court held state laws invalid
to the extent they exclude same-sex couples from marriage on the same terms and conditions
as opposite-sex couples. Pursuant to Harper v. Virginia Dep’t of Taxation, 509 U.S.
86, 94-98 (1993), SSA 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, SSA will consider all state-law, same-sex-marriage
bans, whether based on state constitutional provisions, statutory provisions, or case
law, void and ineffective. SSA will apply the relevant law to the facts as usual to
evaluate marital status.
B. New Hampshire Law
New Hampshire law provides that “[p]ersons cohabiting and acknowledging each other
as husband and wife , and generally reputed to be such, for a period of 3 years and until the decease
of one of them, shall thereafter be deemed to have been legally married.” N.H. Rev.
Stat. Ann. § 457:39. Beyond Section 457:39, which has been “in effect in substantially
the same form since 1842,” common-law marriage is not recognized in New Hampshire.
Joan S. v. John S., 121 N.H. 96, 98, 427 A.2d 498, 499 (1981). In other words, New
Hampshire will not recognize common-law marriage unless one of the parties has died
and the couple’s relationship satisfies the requirements of Section 457:39. Id.
“By section 40, chapter 338, Revised Laws, evidence, of ‘acknowledgment, cohabitation
and reputation’ is made competent proof of marriage,” and section 39 established “that
these requirements continued for three years and until the death of one of the parties,
confers thereafter the incidents which follow upon the termination of a valid marriage
by death.” Fowler v. Fowler, 96 N.H. 494, 497, 79 A.2d 24, 27 (1951). See also POMS
GN 00305.075.B. (discussing recognition of common-law marriage in New Hampshire after one spouse
Thus, Section 457:39 appears to operate exclusively to allow a survivor to acquire
the status of spouse in order to inherit a decedent’s assets under New Hampshire’s
intestacy laws. SeeN.H. Rev. Stat. Ann. 561:1; see alsoIn
re Estate of Buttrick , 134 N.H. 657, 676, 597 A.2d 74, 75 (1991) (upholding probate court’s finding that
petitioner was entitled to a share of decedent’s estate pursuant to N.H. Rev. Stat.
Ann. 457:39); In re
Mallett , 163 N.H. 202, 206, 37 A.3d 333, 336 (2012) (if the prerequisites of N.H. Rev. Stat.
Ann. 457:39 are met, the surviving individual may be “treated as the spouse” of the
We believe that New Hampshire courts would recognize the claimant to be the NH’s widower
for intestate succession. In Obergefell, the Supreme Court held state laws invalid to the extent they exclude same-sex couples
from marriage on the same terms and conditions as opposite-sex couples. 135 S. Ct.
at 2604-05. Moreover, New Hampshire law already provides that gender-specific terms
relating to marital relationships (e.g., “husband” and “wife”) are to be construed
in a gender-neutral manner. N.H. Rev. Stat. Ann. § 21:3. Therefore, New Hampshire
courts would likely deem the couple to have been legally married as long as all the
statutory requirements were met. From the evidence presented here, it appears that
the couple can meet all the statutory requirements: they (1) cohabited; (2) acknowledged
each other as life partners (or some other equivalent of husband and wife); and (3)
were generally reputed to be partners in their community, for at least the requisite
three-year period preceding the NH’s death.
First, several statements show that the claimant and the NH cohabited for much longer
than three years prior to the NH’s death in July 2016. The claimant indicated in his
form SSA-754 that he and the NH had lived together since 1963, and his and the NH’s
siblings all confirmed this fact in their forms SSA-753. In addition, the claimant
submitted a mortgage document showing that he and the NH had purchased their current
home together in 1986.
Second, the claimant’s statement reflects that he and the NH acknowledged each other
as life partners. In his form SSA-754, the claimant stated that when he and the NH
moved in together, they became exclusive and “dedicated to each other forever.” He
also stated that once same-sex relationships became more accepted, he and the NH began
describing the other as his “partner” to relatives, friends, and other acquaintances. Although there is little New Hampshire case law on point, these public statements
would likely be sufficient to satisfy the second statutory requirement – particularly
absent any contradictory evidence. See Delisle v.
Smalley, 96 N.H. 58, 59, 69 A.2d 868, 870 (1949) (“Acknowledgment of another as one’s spouse
involves declaration or avowal of the relationship.”); cf. In Re Estate of Bourassa, 157 N.H. 356, 358-59, 949 A.2d 704, 707 (2008) (acknowledgment requirement not met
where multiple witnesses testified that purported husband and wife had each emphatically
denied being married to the other).
Third, the claimant’s statement, as well as statements from the claimant’s and the
NH’s siblings, all reflect that the claimant and the NH were generally reputed to
be partners in their community. The claimant identified several business associates,
employees, and neighbors who could confirm the couple’s relationship. The claimant’s
siblings both indicated in their forms SSA-753 that the claimant and the NH were generally
known as “married partners” or “life partners” in the community, and all of the claimant’s
and the NH’s siblings indicated (each using different language) that they considered
the couple to be the equivalent of a married couple. See In re Estate of Buttrick, 134 N.H. 675, 677-78, 597 A.2d 74, 76-77 (1991) (finding third statutory requirement
met based on statements from relatives, friends, and neighbors that they considered
cohabiting couple to be married). Moreover, the couple’s shared bank account and co-ownership
of their home and car further illustrate that they held themselves out to be partners
in the community.
In sum, the claimant and the NH cohabitated, acknowledged each other as “life partners,”
and were reputed as such for a period of at least three years, until the death of
the NH. See N.H. Rev. Stat. Ann. § 457:39. Indeed, unlike in the case of In re Estate of Bourassa, 157 N.H. 356, 357, 949 A.2d 704, 706 (2008), where the couple held real estate separately
and either expressly refuted any marital relationship or simply refrained from acknowledging
any such relationship, in this case, the claimant and the NH held property jointly,
had a joint bank account, and referred to each other as life partners among family
members. In other words, the facts of this case are more similar to the case of In re Estate of Buttrick, 134 N.H. 675, 678, 597 A.2d 74, 77 (1991), wherein the Court found that the statements
of friends, relatives, and acquaintances sufficiently established that the couple
was “generally reputed to be” married. As the Court explained, “[e]ven though Petitioner
and Buttrick knew they were not legally married in the eyes of the law, they acknowledged
their relationship to be that of husband and wife, conducted themselves as such and
held themselves out to the public as such.” Id.
Under all these circumstances, and in light of the Supreme Court’s holding in Obergefell, we believe New Hampshire courts would deem the claimant and the NH to have been
legally married. Although New Hampshire only recognizes common-law marriage after
the death of one of the parties, for inheritance purposes, we believe the agency could
find the claimant is the NH’s widower because either: (a) “the courts of the State
in which [the insured individual] was domiciled at the time of death . . . would find
that such applicant and such insured individual were validly married at the time .
. . such insured individual . . . died” (under 42 U.S.C. § 416(h)(1)(A)(i)); or (b)
because the claimant “would, under the laws applied by New Hampshire courts in determining
the devolution of intestate personal property, have the same status with respect to
the taking of such property as a . . . widower . . . of such [the NH]” (under 42 U.S.C.
§ 416(h)(1)(A)(ii)). Under either of these provisions, the result would be the same;
the claimant would be considered the NH’s widower for benefit purposes under the Act.
Turning next to the question of duration, to be considered a “widower,” a claimant
must also show that “he was married to [his spouse] for a period of not less than
nine months immediately prior to the day on which [his spouse] died…” 42 U.S.C. §
416(g)(1)(E). Under N.H. Rev. Stat. Ann. § 457:39, a couple who has met the cohabitation,
acknowledgement, and general reputation requirements “for a period of 3 years and
until the decease of one of them, shall thereafter be deemed to have been legally
married.” Therefore, as New Hampshire requires a couple to have been in their relationship
for three years prior to the death of one member, we believe the agency can find that
the couple has satisfied these requirements since at least July 2013.
Based on the foregoing, we believe that New Hampshire courts would recognize that
the claimant is the NH’s widower under intestacy law, since at least July 2013 for
the purpose of awarding survivor benefits. Accordingly, we believe there is support
for the agency to find that the claimant is the NH’s widower for purposes of determining
his entitlement to survivor benefits.