TN 10 (03-16)

PR 05830.170 Ireland

A. PR 16-045 Validity of Same-Sex Civil Partnership Performed in Wicklow, Ireland—Death Case — REPLY

Date: December 15, 2015

1. SYLLABUS

The number holder (NH) and claimant entered into a civil partnership in April 2012 in Wicklow, Ireland. The statutory civil partnership registration system for same-sex couples was introduced in Ireland on January 1, 2011. The NH and claimant lived in the same household until the NH’s death in February 2013, and the claimant filed for the lump sum death payment (LSDP) as the NH’s widower in January 2014. Since the NH resided in Ireland at the time of death, we apply the District of Columbia law to determine whether the couple were validly married. The District of Columbia began recognizing same-sex marriages entered into in other jurisdictions beginning on July 7, 2009. Next, the validity of a same-sex marriage under the law of Ireland must be examined.

Ireland started recognizing same-sex marriage since November 16, 2015. In this case, there are no allegations or evidence that a same-sex marriage occurred between the claimant and NH nor are there any allegations that the civil partnership was converted to a marriage. Accordingly, the couple is not validly married under the laws of Ireland. However, if the claimant cannot be entitled to benefits based on a marriage to the NH, the agency may deem the claimant to have been married if we can determine the claimant has the same status as a spouse with respect to the taking of the NH’s property if he or she were to die intestate. Irish law provides that if a civil partner dies intestate, the same inheritance rights apply to the surviving civil partner as it would apply in a marriage to a surviving spouse.

Although the claimant’s relationship with the NH would not be recognized as a marriage under the law of Ireland, the claimant maintains the same status as a spouse of the NH under Irish intestacy law. Therefore, the agency can deem the couple married for Title II purposes.

2. Opinion

QUESTION PRESENTED

Whether P~ (claimant) and P2~, the deceased insured number holder (NH), who entered into a civil partnership on April XX, 2012 in Wicklow, Ireland, were validly married for purposes of determining claimant’s entitlement to Lump Sum Death Payment (LSDP) under Title II as the NH’s widower under the Social Security Act (Act)? If they were not validly married, can the Agency deem the couple to have been married for purposes of determining claimant’s entitlement to LSDP as the NH’s widower?

OPINION

Yes, the agency can find that the claimant is the NH’s widower under the Act. Accordingly, if the claimant meets the other criteria for entitlement to the LDSP,1 the agency could find that he is entitled to that payment on the NH’s record.

BACKGROUND

The claimant and the NH entered into a civil partnership on April XX, 2012, in Wicklow, Ireland. The claimant and the NH lived in the same household as partners until the time of NH’s death on February XX, 2013. The claimant applied for LSDP on the NH’s record on January XX, 2014. You requested a legal opinion regarding whether the claimant and NH’s civil partnership was a valid marriage and whether the civil partnership entitled the claimant to benefits on the NH’s record.

ANALYSIS2

Under section 202(i) of the Act, to be entitled to the LSDP on an insured NH’s record, a claimant must show that he or she is the NH’s widow or widower and resided in the same household with the deceased at the time of death. See also 20 C.F.R. § 404.391. A widow or widower is defined as the surviving wife or husband and must have been married to the insured for a period of not less than nine months immediately prior to the day the wife or husband died. See section 216(c) & (g) of the Act; see also 20 C.F.R. §§ 404.335, 404.345, 404.346. The laws of the state where the NH had a permanent home when he or she died determine whether a martial relationship exists.

Here, because the NH resided in Ireland at the time he died, we apply District of Columbia law to determine whether they were validly married. Section 216(h)(1)(A)(i) of the Act; 20 C.F.R.

§ 404.345. 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). As pertinent here, the District of Columbia began recognizing as valid same-sex marriages entered into in other jurisdictions beginning on July 7, 2009.3 See Section 1287a of the Jury and Marriage Amendment Act of 2009, D.C. Code § 46-405.01. 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). (“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 Ireland.

The Claimant is not Validly Married to the NH Pursuant to Irish Law

On November 16, 2015, the requirement that parties to a marriage be of opposite sexes was removed from the Irish Constitution after a nationwide referendum, and thus Ireland now recognizes same-sex marriage.4 This amendment does not obligate couples existing in civil partnerships to convert their partnerships to marriages, but going forward, same-sex couples will only have the opportunity to seek marriage applications, not civil partnerships.5 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 the laws of Ireland.

The Claimant has the Same Status as a Husband of the NH Pursuant to Irish Intestacy Law

If the claimant cannot be entitled to widower’s benefits based on a marriage to the NH, the agency may deem the claimant to have been married to the NH, 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 § 416(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, as noted above, the NH was domiciled in Ireland. Accordingly, to determine whether the claimant would have the requisite status with respect to inheritance of the NH’s intestate property, we apply Irish law.

Effective January 1, 2011, a statutory civil partnership registration system for same-sex couples was introduced in Ireland.6 The Registrar General is under an obligation to maintain a register of legal partnerships.7 Both parties must sign the civil partnership registration form in front of each other, the Registrar, and two witnesses.8 Once the Registrar countersigns the civil partnership form, the parties are considered to be civil partners with all the duties and benefits of partnership.9 Under Irish law, a civil partnership is a legally binding contract with “legal consequences” that are “generally similar to the legal consequences of getting married.”10 With respect to intestate succession, civil partners maintain the same rights as spouses.11

In this case, the claimant has presented the agency with a copy of a Civil Partnership Certificate, registered on April XX, 2012. The document is signed by the claimant and the NH as well as the Registrar and two witnesses.12 In addition, the law of Ireland 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 would inherit a spouse’s share of the NH’s intestate property under the law of Ireland.

CONCLUSION

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


Footnotes:

[1]

If a person is fully or currently insured when he or she dies, a LSDP of $255 may be paid to the widow or widower of the deceased if the widow or widower applies for the payment within two years of the NH’s death, and if he or she was living in the same household with the NH at the time of his or her death. 20 C.F.R. §§ 404.390, 404.391.

[2]

We note that our discussion of the law of Ireland is based in part on an opinion we received from the Library of Congress.

[3]

Domestic Partnerships were effective in the District of Columbia on January 6, 2007.

[4]

. Thirty-Fourth Amendment of the Constitution (Marriage Equality) Act 2015, http://www.oireachtas.ie/documents/ bills28/acts/2015/a34th15.pdf, archived at http://perma.cc/Y88R-QWWC. The first same-sex marriage ceremony in Ireland was held on November 17, 2015. Douglas Dalby, First Same-Sex Marriage Ceremony Held in Ireland, N.Y. TIMES, Nov. 17, 2015, http://www.nytimes.com/2015/11/18/world/europe/first-same-sex-marriage-ceremony-held-in-ireland.html, archived at http://perma.cc/LL3Z-6L4X.

[5]

Minister Fitzgerald announces Commencement of Marriage Act 2015, DEPARTMENT OF JUSTICE AND EQUALITY (Nov. 10, 2015), archived at http://perma.cc/TBN3-PD4X.

[6]

Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, No. 24 of 2010, http://www.irish statutebook.ie/eli/2010/act/24/enacted/en/print.html, archived at http://perma.cc/7WGZ-4YPX.

[7]

Civil Registration Act 2004, § 49 (as amended by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, § 7).

[8]

Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, § 16 (inserting § 59D(3) into the Civil Registration Act 2004).

[9]

Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, § 16 (inserting § 59H into the Civil Registration Act 2004).

[10]

How Civil Partnership Changes Your Legal Status, CITIZENS INFORMATION, http://www.citizensinformation.ie/en/birth_family_relationships/civil_partnerships/how_civil_partnership_changes_your_legal_status.html (last updated Nov. 16, 2015), archived at http://perma.cc/EL8L-NHZS.

[11]

Civil Partnership and Certain Rights and Obligations of Cohabitants Act