The number holder NH died while domiciled in in Queensland, Australia. Since the NH died outside of the country, we must determine whether this relationship would allow the claimant to have the requisite status as a spouse with respect to inheritance of the NH’s intestate property under the law applied by the District of Columbia. Here, the claimant and NH entered into a de facto partnership in January 1994. Based on the evidence provided, we believe that the courts of the District of Columbia would find that the claimant’s de facto relationship with the NH would allow her the same intestate succession rights that a spouse of the NH would have. Thus, the agency may deem the claimant to be the NH’s spouse for Title II purposes. Accordingly, the agency can entitle the claimant to widow’s benefits on the record of the NH.

Question Presented

J~ (claimant) applied for benefits as a surviving spouse on the earnings record of M~, the insured number holder (NH). You have asked if the claimant is entitled to Title II insurance benefits as a surviving spouse and the Lump Sum Death Payment (LSDP) on the NH’s record based on a de facto partnership with the NH that ended in Queensland, Australia when the NH died.

Short Answer

Claimant alleges that she and the NH entered into a de facto relationship in January 1994[^[1] ]. We believe that the courts of the District of Columbia would find that the claimant’s de facto relationship with the NH would allow her the same intestate succession rights that a spouse of the NH would have. Thus, the agency may deem the claimant to be the NH’s spouse for Title II purposes.

Background

The claimant and the NH entered into a de facto relationship in January 1994. They were considered an exclusive couple since that time to those that knew them. While residing in Queensland, Australia with the claimant, the NH died on October xx, 2018. The claimant filed for widow’s benefits and the LSDP on November X 2018.

Analysis [^[2] ]

Federal Law

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.[^[3] ] 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. The marriage between the claimant and NH must have also lasted nine months as of the NH’s death. 42 U.S.C. § 416(c), of the Act; 20 C.F.R. § 404.335. 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.

Additionally, to be entitled to the LSDP under Title II of the Act, a claimant must establish that he or she is the widow(er) of an individual who died fully or currently insured, and he or she was living in the same household as the insured at the time of his or her death. See Act §§ 202(i), 216(c), (g); 20 C.F.R. §§ 404.390, 404.391. There is not a nine-month duration-of-marriage requirement for LSDP.

Here, Claimant does not allege that a marriage to the NH existed, nor is there any evidence of a valid ceremonial marriage. Instead, the Claimant is alleging that she entered into a nonmarital legal relationship with the NH, which ended in Queensland, Australia. Therefore, we must examine whether the claimant can be deemed to be the insured’s spouse in accordance with the Act. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. In so doing, we must determine whether this relationship would allow the claimant to have the requisite status as a spouse with respect to inheritance of the NH’s intestate property under the law applied by the District of Columbia. 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)). In this case, the inheritance laws of Queensland, Australia, the NH’s domicile, apply.

The Claimant Has the Same Status as a Spouse of the NH under Intestacy Law of Queensland, Australia

Inheritance rights in Australia are primarily governed by state-level legislation. In Queensland, the legal authority that applies is the Succession Act of 1981.[^[4] ] De facto partners are included in the definition of “spouse” for the purposes of the above provisions on wills and intestacy pursuant to section 5AA of the Act.[^[5] ] The Acts Interpretation Act of 1954 (the AIA), specifically section 32DA, provides the definition of a de facto partner.[^[6] ] Per the AIA, when deciding whether two persons are living together as a de facto relationship some of the following should be taken into account: the nature and extent of their common residence, length of the relationship, degree of financial arrangement or financial support, their ownership, use, and acquisition of property, the degree of mutual commitment to a shared life, including the care and support of each other, the care and support of children, the performance of household tasks, and/or the reputation and public aspects of their relationship.[^[7] ] The gender of the persons in the relationship is irrelevant. The de facto partner of a deceased partner has spousal inheritance rights with respect to that person’s estate, provided that the couple lived together as a couple on a genuine domestic basis for a continuous period of at least two years ending on the deceased’s death.[^[8] Therefore, the laws of Queensland, Australia recognizes the rights of same-sex de facto partners to inherit from their deceased partner’s property. In other words, under the law of Queensland, Australia, a surviving partner of a de facto partnership has spousal rights of intestate inheritance from the other partner.

Here, the claimant and NH entered into a de facto partnership in January 1994. The Statement of Marital Relationship form submitted by the claimant indicates that she and the NH maintained a bank account together as well as home insurance. Moreover, they were known as spouses by family members and lived together until the NH’s death. In fact, they lived together as a couple for at least 25 years, which is well over the two years required under the laws of Queensland, Australia. Given the aforementioned factors, the claimant and NH meet the criteria of a de facto relationship. Since the claimant and NH meet the criteria of de facto partners, they both have rights of intestate inheritance from the other partner. As a result, we believe the courts of the District of Columbia would determine that a valid de facto partnership existed between the NH and the claimant; therefore, any entitlements associated with this partnership, such as intestate succession, apply. The agency could deem the claimant and NH as spouses based on the evidence presented. Accordingly, the agency can entitle the claimant to widow’s benefits on the record of the NH.

CONCLUSION

Based on the analysis above, we believe that the courts of the District of Columbia would find that the claimant’s de facto partnership with the NH would allow her the same intestate succession rights that a spouse of the NH would have. Thus, the agency may deem the claimant to be the NH’s widow for Title II purposes.