Whether P~, the claimant, and N~, the number holder (NH), who entered into a civil
partnership on August XX, 2008, in L~, England are validly married for purposes of
determining claimant’s entitlement to Title II benefits as the NH’s spouse under the
Social Security Act (Act)? If they cannot be considered validly married, can the Agency
deem the couple as married for purposes of determining claimant’s entitlement to Title
II benefits as the NH’s spouse?
No, the claimant and the NH are not validly married under Title II of the Act. However,
yes, the agency can deem the couple as married for Title II benefit purposes. The
civil partnership provides the claimant the same status as a spouse of the NH under
English intestacy law. Thus, the agency can deem the claimant and the NH as married
on this basis. Accordingly, if the claimant meets the other criteria for entitlement
to spouse’s benefits, the agency should find that the claimant is entitled to spouse’s
benefits on the NH’s record.
The claimant and the NH entered into a civil partnership on August XX, 2008, in L~,
England. The NH continues to reside in England. On July XX, 2013, the claimant filed
for Social Security benefits on the NH’s record. You requested a legal opinion regarding
whether the claimant is entitled to Title II spouse’s benefits on the record of the
To be entitled to spouse’s benefits under the Social Security Act (Act), a claimant
must show, among other things, that he or she is the “husband” or “wife” of an insured
NH. See 42 U.S.C. §§ 402(b), (c), 416(a)(1); 20 C.F.R. § 404.330. 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.
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. 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.
Validity of Same-Sex Marriage Under the Law of the District of Columbia
Here, because the NH resided in England at the time the claimant applied for benefits,
we apply District of Columbia law to determine whether the couple was validly married.
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 XX, 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
England and Wales.
The Claimant is not Validly Married to the NH Under English Law
The government of England and Wales introduced the Marriage (Same Sex Couples) Act
2013.  This Act came into force on March 13, 2014, and allows same-sex couples to enter
into a marriage in accordance with the Marriage Act 1949,  bestowing on them the same legal rights as heterosexual couples, but preserves the
Canon Law of the Church of England by not requiring Churches of England to apply the
new law.  Beginning December 10, 2014, same-sex partners have the option of converting their
partnerships into marriages.   The law providing for Civil Partnerships will continue, and there are no requirements
compelling civil partners to change their partnerships into a marriage. In the claim
at issue, there are no allegations or evidence that a same-sex marriage occurred between
the claimant and the NH. Nor are there any allegations that the civil partnership
the couple entered into was converted to a marriage. Accordingly, the couple is not
validly married under English Law.
The Claimant has the Same Status as a Husband of the NH Under English Intestacy Law
If the claimant is not validly married to NH, the agency will deemed 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 husband 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 England. Accordingly,
to determine whether the claimant would have the requisite status with respect to
inheritance of the NH’s intestate property, we apply English law.
England and Wales enacted the law providing for civil partnerships in 2004, which
entered into effect on December 5, 2005.  Entering into a civil partnership creates the same legal relationship between partners
as a marriage between a husband and wife, but with the different terminology of “civil
partners.” Section 71 of the Civil Partnership Act amended a number of provisions
relating to wills and the administration of estates so that they apply in the same
way to civil partnerships and married couples. If a civil partner dies intestate, the same rules apply to the surviving civil partner
as would apply in marriage to a surviving spouse.  Section 46 of the Administration of Estates Act 1925 provides that if a civil partner
dies intestate without issue, the surviving civil partner inherits the residual estate
A civil partnership becomes legal when the civil partnership registration certificate
is signed by both parties. Once formed, a civil partnership only ceases upon death,
dissolution, or annulment.  Civil partnerships must be registered with the Registrar General,  who is required by law to maintain a register of civil partnerships and any decrees
of dissolution or nullity of these partnerships. A certificate showing proof of the civil partnership are available for a small fee
after the ceremony, and copies may be obtained from the Registrar General’s Office
at a later date for an additional fee. 
Here, the claimant has presented SSA with a certified copy of an Entry of Civil Partnership,
registered on August XX, 2008. The document is signed by both the claimant and the
NH. In addition, the law of England and Wales provides that if a civil partner dies
intestate, the same inheritance rights apply to the surviving civil partner as would
apply in marriage to a surviving spouse. Based on these facts, it appears that the
claimant qualifies as an individual entitled to inherit a husband’s share of the NH’s
intestate property under the law of England and Wales and accordingly, the agency
would deem the couple as married.
Although the claimant’s relationship with the NH would not be recognized as a valid
marriage under the law of England and Wales, the claimant has the same status as a
husband of the NH under the law of England and Wales. Thus, the agency can deem the
couple married for Title II purposes.