TN 14 (11-19)

PR 05830.030 Denmark

A. Validity of Marriage – Same Sex Marriage/Domestic Partnership in Denmark

Date: July 12, 2019

1. Question Presented

Can the agency recognize the claimant, to be the spouse of the number holder (NH), for purposes of entitlement to benefits under Title II, where the parties entered into a domestic partnership in Esbjerg, Denmark on September 2011? If so, when can the agency recognize that the spousal relationship began?

2. OPINION

We believe that the courts of the District of Columbia would find that under Danish law[1] , the claimant would have the same status as a spouse of the NH for purposes of intestate inheritance. Thus, we believe there is support for the agency to deem the claimant as the NH’s spouse as of September 2011, for purposes of entitlement to Title II benefits.

3. Background

The claimant alleges that she entered into a domestic partnership with the NH on September 2011. The claimant and the NH obtained a “Certificate of Partnership” under Danish law. In April 2018, the claimant applied for wife’s insurance benefits under Title II on the record of the NH. The claimant seeks benefits beginning May 2018. The NH currently resides in Denmark.

4. Analysis

To be entitled to wife’s insurance benefits under the Act, a claimant must show, among other things: (1) that she is the legal or deemed spouse of the NH under the laws of the State of the NH’s domicile at the time the claimant files an application (or during the life of the application); or (2) that she has the same rights as a wife to share in the distribution of the NH’s intestate personal property under the laws of the State of the NH’s domicile at the time of filing. POMS RS 00202.001.A.1; 42 U.S.C. § 402(b); 42 U.S.C. § 416(b); 20 C.F.R. § 404.330(a).

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 the claimant applied for benefits. 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. If the claimant cannot show that she is married to the NH, the agency will deem the claimant to be the NH’s spouse if the state of the NH’s domicile would allow the claimant to inherit a spouse’s share of the NH’s personal property should the NH die without leaving a will. POMS GN 00210.004.A.

In this cased the NH is domiciled in Denmark. Therefore, the claimant’s status will be evaluated under the laws of the District of Columbia. Thus, the agency will find the claimant is the wife of the NH if the courts of the District of Columbia would find that the claimant was validly married to the insured at the time she filed an application. 42 U.S.C. §§ 416(c)(1); 416(h)(1)(A)(i); 20 C.F.R. § 404.345.[2] If claimant is not found to be married to NH, we will examine if the claimant can inherit a spouse’s share of the NH’s personal property should the NH die without leaving a will under the law of the District of Columbia. POMS GN 00210.004.A; POMS RS 00202.001.A.1; 42 U.S.C. § 402(b); 42 U.S.C. § 416(b); 20 C.F.R. § 404.330(a).

The claimant and the NH are not legally married under Danish Law.

Under the law of the District of Columbia, the validity of the marriage is determined by the law of the jurisdiction where the marriage was entered into. See Bansda v. Wheeler,995 A.2d 189, 198 (D.C. Cir. 2010); 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).

Here, the claimant alleges that she and the NH were married in Denmark on September XX, 2011. See Application. Although in her application she alleged that she was “married” to the NH, she provided a Certificate of Partnership, indicating that a registered domestic partnership was contracted on that date. See Certificate. Thus, although the claimant alleged that she was “married,” she has provided evidence of a non-marital legal relationship, rather than a legal marriage in Denmark.

The claimant has the same rights as a spouse of the NH under intestacy law.

Since the claimant was not legally married to the NH, we next must examine whether she has the same rights as a wife to share in the distribution of the NH’s intestate personal property under the laws of the State of the NH’s domicile at the time of filing. POMS RS 00202.001.A.1; 42 U.S.C. § 402(b); 42 U.S.C. § 416(b); 20 C.F.R. § 404.330(a). Under District of Columbia law, the law of the decedent’s domicile determines intestate inheritance rights. 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 NH was domiciled in Denmark at the time of filing.

In 1989, Denmark passed the “Act on Registered Domestic Partnerships” which permitted registration of same-sex partnerships. See Law Library of Congress Letter. Persons who entered into domestic partnerships were provided a Certificate of Partnership. Id. Other than laws governing adoption, the law governing domestic partnership provides that the union is legally equivalent to a marriage. Id.

The Act was repealed when the Marriage Act became gender neutral in 2012. See Law Library of Congress Letter. The 2012 amendment to the Marriage Act made the Act applicable to marriage “between two persons of opposite sex and between two persons of the same sex.” Id. (emphasis added). Further, the Act stated that persons who had previously entered into a same-sex registered domestic partnership could transform their partnership into a marriage, and receive a marriage certificate. Id. However, partnerships that were not transformed into a marriage continue to be valid. Id.

The claimant provided a Certificate of Partnership indicating that she and the NH registered a domestic partnership in September 2011, before the Domestic Partnership Act was repealed and the Marriage Act became gender neutral in 2012. See Certificate. Under the Marriage Act, the claimant and the NH could have transformed their partnership into a marriage, but they were not required to do so. Their domestic partnership remains valid and is considered legally equivalent to a marriage under Danish law.

Thus, under the Danish Marriage Act, a domestic partnership is considered legally equivalent to a marriage. Further, under the Inheritance Act, domestic partners inherit from each other on the same terms as a married couple. Id.[3]

Accordingly, we believe the courts of the District of Columbia would find that under Danish law, the claimant has the same status as a spouse of the NH for purposes of intestate inheritance because they had a valid NMLR as of September 2011.

5. Conclusion

We believe that the courts of the District of Columbia would find that under Danish law, the claimant has the same status as a spouse of the NH for purposes of intestate inheritance. Accordingly, we believe that there is sufficient evidence for the agency to deem the claimant as the NH’s wife for Title II spousal benefits. Thus, as of September, 2011, the agency could consider the claimant to be the NH’s spouse for purposes of entitlement to wife’s insurance benefits.

 


Footnotes:

[1]

Our discussion of Danish law is based on information we received from the Law Library of Congress. See Letter from Elin Hofverberg, Foreign Law Specialist, LL File No. 2019-017126 (December 20, 2018) (Law Library of Congress Report).

[2]

Under 42 U.S.C. § 402(b); POMS RS 00202.001.B, once the claimant has established that she is a spouse, the claimant is entitled to Title II benefits on the NH’s record if:

  • The NH is entitled to retirement insurance benefits (RIB) or disability insurance benefits (DIB); and

  • She files an application for benefits; and

  • She is not entitled to RIB or DIB based on a primary insurance amount (PIA) that equals or exceeds one‑half the NH’s PIA; and

  • She has attained age 62 or has a child in care entitled to a child’s insurance benefit on the NH’s record; and

  • She meets one of the following requirements:

    • One-year duration-of-marriage: married for at least one continuous year immediately before the day on which the claimant’s application is filed; or

    • Natural mother or father of the NH’s biological child; or

    • Entitlement or potential entitlement to other Title II benefits in the month before the claimant married the NH.

The sole issue we have been asked to review is whether the claimant can be considered the NH’s spouse for purposes of entitlement to wife’s insurance benefits.

[3]

The District of Columbia also recognizes domestic partnerships, which convey spousal inheritance rights. See D.C. Code §§ 35-701; 32-702; POMS GN 00210.004.D.


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http://policy.ssa.gov/poms.nsf/lnx/1505830030
PR 05830.030 - Denmark - 11/05/2019
Batch run: 11/05/2019
Rev:11/05/2019