TN 9 (02-16)

PR 05830.345 Switzerland

A. PR 16-046 – Windsor Same-Sex Marriage Civil Partnership Case, Zurich, Switzerland – Life — REPLY

Date: February 9, 2016

1. Syllabus:

The number holder (NH) and claimant entered into a registered partnership in Switzerland in January 2007 (the same month the Partnership Act was allowed in Switzerland). The NH was domicile in Switzerland at the time of the claimant’s application, therefore we must determine if the marriage is valid 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; this was effective July 7, 2009. In addition, we must examine the validity of the couple’s relationship under the law of Switzerland.

Same-sex couples cannot marry in Switzerland but do have the option of entering into a registered partnership. While the couple has a valid registered partnership, they are not validly married under Swiss law. However, the agency will deem the couple to be married if, under the law applied by the courts of the District of Columbia, the claimant would have the same status as a spouse with respect to the devolution of the NH’s property if he were to die. In this case, Swiss laws of intestate succession do not differentiate between same-sex registered partners and opposite-sex married couples. Therefore, the claimant has the same status as a spouse under Swiss intestacy law, and the agency will deem the couple to be married.

We determine the claimant and 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 Swiss civil partnership provides the claimant the same status as a spouse under Swiss intestacy laws.

2. Opinion

QUESTION PRESENTED

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?

OPINION

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.

BACKGROUND

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.

ANALYSIS 1

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.2 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.3 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, 2009.4 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 Switzerland.

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.”5 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.”6 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, 2007.7

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.8 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.9 Therefore, the claimant has the same status as a spouse under Swiss intestacy law, and the agency will deem the couple to be married.

CONCLUSION

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.


Footnotes:

[1]

Our discussion of the law of Switzerland is based in part on information we received from the Library of Congress.

[2]

To be eligible for spousal benefits, the claimant must also show that he or she: (1) has been married to the insured individual for at least one year, shares a natural child with the insured, or is entitled to certain benefits in the month before the marriage; (2) has filed an application for spousal benefits; (3) has attained aged 62 or has in his or her care a child entitled to child’s benefits; and (4) is either not entitled to old-age or disability benefits, or is entitled to such benefits based on a primary insurance amount which is less than one-half of the spouse’s primary insurance amount. See 42 U.S.C. § 402(b)(c); 20 C.F.R. § 404.330. As we have not been asked to provide an opinion on whether claimant meets these additional requirements, our opinion will focus on whether the claimant and the NH are validly married or can be deemed married.

[3]

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.

[4]

. Domestic Partnerships were effective in the District on January 6, 2007. SSA can deem these domestic partnerships as marriages. See GN 00210.004.

[5]

. Bundesgericht [BGer] [Federal Supreme Court], Mar. 3, 1993, ENTSCHEIDUNGEN DES SCHWEIZERISCHEN BUNDESGERICHTS [BGE] [DECISIONS OF THE SWISS FEDERAL SUPREME COURT] 119 II 264 S. 266 No. 3b, http://relevancy.bger.ch/cgi-bin/Jump CGI?id=BGE-119-II-264&lang=de&zoom=&system, archived at http://perma.cc/6ADZ-9FKQ

[6]

. Id. at S. 267 No. 4b.

[7]

.

BUNDESGESETZ ÜBER DIE EINGETRAGENE PARTNERSCHAFT GLEICHGESCHLECHTLICHER PAARE [PARTNERSCHAFTSGESETZ] [PARTG] [FEDERAL ACT ON REGISTERED PARTNERSHIPS OF SAME-SEX COUPLES] [PARTNERSHIP ACT], June 18, 2004, SR 211.231, art. 1, https://www.admin.ch/opc/de/classified-compilation/2002 2194/201307010000/211.231.pdf, archived at http://perma.cc/8SPK-P77L.

[8]

. Although residing in Switzerland according to the Master Beneficiary Record query, it appears that the NH at some point lived in Germany. (See claimant’s form SSA-21, page 1, dated February XX, 2014.)

[9]

. According to article 462 of the Swiss Civil Code, “[s]urviving spouses and registered partners receive:

1. one-half of the estate, where they are obliged to share with the deceased’s issue;

2. three-quarters of the estate, where they are obliged to share with heirs in the parental line;

3. the entire estate, where no heirs exist in the parental line either.”


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