Whether R~ (the claimant) and number holder (NH) S~, who entered in to a registered
partnership in Switzerland, 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?
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 the purpose of Title II benefits
on the basis that the Swiss civil partnership provides the claimant the same status
as a spouse under Swiss intestacy laws.
The claimant and the NH, who reside abroad, obtained a Certificate of Partnership
from the Swiss Civil Registrar on January XX, 2007. The claimant applied for Social
Security benefits as the NH’s spouse on January XX, 2014.
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 NH. 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 Swiss Law
According to Swiss jurisprudence, a marriage is defined as the “sexual union of a
man and a woman or, in other words, of two people of the opposite sex.” The Swiss Federal Supreme Court wrote that “a marriage is defined as a union for
life between a man and a woman in an all-encompassing partnership.” Same-sex couples cannot marry in Switzerland, but instead have the option of entering
into a registered partnership. The Federal Act on Registered Partnerships of Same-Sex
Couples (Partnership Act) governs the creation, legal effects, and dissolution of
same-sex registered partnerships. The Partnership Act entered into force on January
1, 2007, and the couple received their Certificate of Partnership on January XX, 2007.
Accordingly, while the couple has a valid registered partnership, they are not validly
married under Swiss law. Therefore, District of Columbia law would not recognize the
couple as validly married.
The Claimant has the Same Status as a Husband of the NH under Swiss Intestacy Law
Since the claimant is not validly married to 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 Switzerland. 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 Switzerland.
The claimant and NH have a recognized same-sex partnership under Swiss law. The Swiss
laws of intestate succession do not differentiate between same-sex registered partners
and heterosexual married couples, as surviving spouses and registered partners have
the same rights of intestate succession under article 462 of the Swiss Civil Code. Therefore, the claimant has the same status as a spouse under Swiss 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
Switzerland. Thus the agency can deem the couple married for Title II purposes.