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?
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.
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.
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. 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. 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. 
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.  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
The Claimant is not Validly Married to the NH under Austrian
According to Austrian law, a marriage contract is restricted to two people of the
opposite sex. The Austrian Constitutional Court has upheld this restriction. 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.”
 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. The couple received their Partnership Certificate on April XX, 2013.
The Claimant has the Same Status as a Spouse of the NH under Austrian
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. Therefore, the claimant has the same status as a spouse under Austrian intestacy
law, and the agency will deem the couple to be married.
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.