TN 17 (05-20)

PR 05830.011 Austria

A. PR 20-043 Same-Sex Domestic Partnership-Austria

Date: April 5, 2016

1. Syllabus

The number holder (NH) is domiciled in Austria; therefore, we apply the law of Austria. The claimant and the NH obtained an Austrian Partnership Certificate in April 2013. Although the claimant and the NH are not validly married under Austrian law, the agency can deem the couple as married for the purpose of Title II benefits on the basis that the Austrian Registered Partnership provides the claimant the same status as a spouse under Austrian intestacy laws. Thus the agency can deem the couple married for Title II purposes.

2. Opinion

Question Presented

Whether G~ (the claimant) and number holder (NH) W~, who entered in to a Registered Partnership in Austria, are validly married for the purpose of determining the claimant’s entitlement to Title II benefits under the Social Security Act (“Act”). If they cannot be considered validly married, can the agency deem the couple as married for the purpose of determining such entitlement as a spouse?

Short Answer

The claimant and the NH are not validly married under Title II of the Act. However, the agency can deem the couple as married for the purpose of Title II benefits on the basis that the Austrian Registered Partnership provides the claimant the same status as a spouse under Austrian intestacy laws.

Background

The claimant and the NH, a same-sex couple who reside in Austria, obtained an Austrian Partnership Certificate on April XX, 2013. The claimant applied for Social Security benefits as the NH’s spouse on May XX, 2015.

Analysis[1]

To be entitled to spouse’s benefits under the Act, a claimant must show that, among other things, he or she is the “husband” or “wife” of an insured number holder.[2] See 42 U.S.C. §§ 402(b), (c), 416(a)(1); 20 C.F.R. § 404.330. The claimant bears the burden of proving that he or she is in a valid marital relationship with the insured and is therefore the insured’s spouse. See 20 C.F.R §§ 20 C.F.R. §§ 404.345, 404.704, 404.723, 404.725. As pertinent here, the Act provides two methods for a claimant to show that he or she is the husband or wife of an insured who is domiciled outside the United States.[3] First, a claimant is the husband or wife of such insured if, among other things, the courts of the District of Columbia would find that the claimant was validly married to the insured at the time he or she applied for benefits. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, even if a claimant was not validly married to such insured at the time he or she applied for benefits, he or she will be deemed to be the insured’s husband or wife if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, he or she would have the “same status” as a husband or wife of the insured with respect to the taking of such property. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. [2]

Validity of Same-Sex Marriage under the Law of the District of Columbia

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. 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). 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). As pertinent here, the District of Columbia began recognizing as valid same-sex marriages entered into in other jurisdictions beginning on July 7, 2009. [4] See Section 1287a of the Jury and Marriage Amendment Act of 2009, D.C. Code § 46-405.01 (“A marriage legally entered into in another jurisdiction between 2 persons of the same sex that is recognized as valid in that jurisdiction, that is not expressly prohibited . . . , and has not been deemed illegal . . . , shall be recognized as a marriage in the District.”). Accordingly, the recognition of same-sex marriages performed in other jurisdictions does not appear to violate a strong public policy of the District. Therefore, we next must examine the validity of same-sex marriage under the law of Austria.

The Claimant is not Validly Married to the NH under Austrian Law

According to Austrian law, a marriage contract is restricted to two people of the opposite sex.[5] The Austrian Constitutional Court has upheld this restriction.[6] Therefore, same-sex couples cannot legally marry in Austria.

However, same-sex couples have the option of entering in to a Registered Partnership in order to “commit themselves to a lasting relationship with mutual rights and obligations.” [7] The Registered Partnership Act, which entered in to force on January 1, 2010, governs the creation, legal effects, and dissolution of these same-sex partnerships.[8] The couple received their Partnership Certificate on April XX, 2013.

The Claimant has the Same Status as a Spouse of the NH under Austrian Intestacy Law

Since the claimant is not validly married to the NH, the agency will deem the couple to be married 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 spouse of the NH with respect to the taking of such property, if the NH were to die. See 42 U.S.C § 46(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 is domiciled in Austria. Accordingly, to determine whether the claimant would have the requisite status with respect to inheritance of the NH’s intestate property, we apply the law of Austria.

The claimant and NH have a recognized Registered Partnership under Austrian law. The Austrian civil code at Section 537a provides that the inheritance law provisions for married couples are applicable to registered partners.[9] Therefore, the claimant has the same status as a spouse under Austrian intestacy law, and the agency will deem the couple to be married.

CONCLUSION

Although the claimant’s relationship with the NH would not be recognized as a valid marriage, the claimant has the same status as a spouse of the NH under the law of Austria. Thus the agency can deem the couple married for Title II purposes.


Footnotes:

[1]

[1] Our discussion of the law of Austria is based in part on information we received from the Library of Congress.

[2]

To be eligible for spousal benefits, the claimant must also show that he or she: (1) has been married to the insured individual for at least one year, shares a natural child with the insured, or is entitled to certain benefits in the month before the marriage; (2) has filed an application for spousal benefits; (3) has attained aged 62 or has in his or her care a child entitled to child’s benefits; and (4) is either not entitled to old-age or disability benefits, or is entitled to such benefits based on a primary insurance amount which is less than one-half of the spouse’s primary insurance amount. See 42 U.S.C. § 402(b)(c); 20 C.F.R. § 404.330. As we have not been asked to provide an opinion on whether claimant meets these additional requirements, our opinion will focus on whether the claimant and the NH are validly married or can be deemed married.

[3]

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.

[4]

Domestic Partnerships were effective in the District on January 6, 2007. SSA can deem these domestic partnerships as marriages. See GN 00210.004.

[5]

ALLGEMEINES BÜRGERLICHES GESETZBUCH [ABGB] [CIVIL CODE], JUSTIZGESETZSAMMLUNG [JGS] No. 946/1811, as amended, https://www.ris.bka.gv.at/GeltendeFassung/Bundesnormen/10001622/ABGB%2c%20Fassung%20vom%2007.03.2016.pdf (translation by author), archived at http://perma.cc/W75K-RZHY.

[6]

Verfassungsgerichtshof [VFGH] [Constitutional Court], Oct. 9, 2012, ERKENNTNISSE UND BESCHLÜSSE DES VERFASSUNGSGERICHTSHOFES [VFSLG.] No. 19682/2012, p. 9, https://www.ris.bka.gv.at/Dokumente/Vfgh/JFT_09878991_11B00121_00 /JFT_09878991_11B00121_00.pdf , archived at http://perma.cc/R7VA-WJWK .

[7]

EINGETRAGENE PARTNERSCHAFT-GESETZ [EPG] [REGISTERED PARTNERSHIP ACT], BUNDESGESETZBLATT [BGBL.] [FEDERAL LAW GAZETTE] I No. 135/2009, https://www.ris.bka.gv.at/GeltendeFassung/Bundesnormen/20006586/EPG%2c%20Fassung%20vom%2008.03.2016.pdf (translation by author), archived at http://perma.cc/53M6-9M7V.

[8]

Id.

[9]

Section 537a of the ABGB [Civil Code]: https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40112786/NOR40112786.pdf


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505830011
PR 05830.011 - Austria - 05/22/2020
Batch run: 01/30/2024
Rev:05/22/2020