BASIC (11-14)

PR 05840.032 New Hampshire

A. PR 15-021 Whether a civil union established in Vermont conveys spousal inheritance rights under the intestacy laws of New Hampshire

DATE: November 4, 2014

1. SYLLABUS

A civil union established in Vermont conveys spousal inheritance rights under the intestacy law of New Hampshire. Therefore, the agency can deem the claimant to be the NH’s “widow” for purposes of determining her entitlement to survivors’ benefits under Title II of the Act. A civil union legally contracted outside of New Hampshire, or any legal union other than a marriage that provides substantially the same rights, benefits and responsibilities as a marriage that is legally contracted outside of New Hampshire, can be recognized as a marriage in New Hampshire.

2. OPINION

I. QUESTION PRESENTED

Whether a civil union established in Vermont conveys spousal inheritance rights under the intestacy law of New Hampshire so that the agency can deem the claimant to be the NH’s “widow” for purposes of determining her entitlement to survivors’ benefits under Title II of the Act.

II. SHORT ANSWER

Yes. Under the laws of New Hampshire at the time of the NH’s death, a civil union, legally contracted outside of the state, was recognized as a marriage. Accordingly, the claimant is treated as a spouse under New Hampshire intestacy law. For these reasons, the agency can deem the claimant to be the NH’s widow for purposes of determining her entitlement to Title II survivors’ benefits.

III. BACKGROUND

The evidence shows that the claimant entered into a valid civil union with the NH in Vermont on November 29, 2002. The NH died on February 4, 2013. On October 8, 2013, the claimant filed for widow’s benefits based on the Vermont civil union. Both at the time of the civil union and at the time of the NH’s death, the couple resided in New Hampshire.

IV. APPLICABLE LAW

A. Federal Law

To be entitled to widow’s insurance benefits under the Act, a claimant must show, among other things, that she is the “widow” of the insured. See Act § 202(e)(1), 42 U.S.C. § 402(e)(1). First, a claimant is the widow of such insured if the courts of New Hampshire would find that the claimant was validly married to the insured at the time she died. See Act § 216(h)(1)(A)(i), 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Alternatively, even if a claimant was not validly married to the insured at the time she died, she will be deemed her widow if, at the time of the NH’s death, she would have the same status as a widow of the insured with respect to the taking of such property. See Act § 216(h)(1)(A)(ii), 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. This determination is made using the law applied by the courts of the NH’s domicile state to determine the transfer of personal property when the decedent dies without a will (intestate). See id.

Under POMS GN 00210.004B, a claimant is considered married for benefit purposes, if the non-marital legal relationship (such as a civil union, domestic partnership, or reciprocal beneficiary relationship): (1) “was valid in the place it was established”; and (2) “qualifies as a marital relationship using the laws of the state of the [NH’s] domicile.” Consistent with the Act, this instruction provides that a non-marital legal relationship, such as a civil union, will be treated as a marital relationship if the claimant would be entitled to inherit from the NH as a spouse under the intestacy laws of the state where the NH was domiciled. POMS GN 00210.004A.

B. State Laws

Under the New Hampshire intestacy law, the claimant would be entitled to widow’s benefits if, at the time of the NH’s death, the claimant could inherit as the NH’s spouse. N.H. Rev. Stat. Ann. § 561:1(I)(a) (2014). The question of whether the claimant could inherit as the NH’s spouse, under the New Hampshire intestacy laws, in effect at the time of the NH’s death, is discussed below.

In Vermont, civil unions are non-marital legal relationships, established between July 1, 2000 through September 1, 2009, which convey spousal inheritance rights. Vt. Stat. Ann. tit. 15, § 1202 (2000) (portions repealed by Vt. Stat. Ann. tit. 15, § 8 (2009)); see Vt. Stat. Ann. tit. 15, § 1204(a) (2000). In New Hampshire, civil unions are non-marital legal relationships established from January 1, 2008 through December 31, 2009. N.H. Rev. Stat. Ann. § 457-A (repealed); see N.H. Rev. Stat. Ann. § 457:1-a (2010). Same-sex marriage was legalized in Vermont on September 1, 2009 and in New Hampshire on January 1, 2010. Vt. Stat. Ann. tit. 15, § 8 (2009); N.H. Rev. Stat. Ann. § 457:1-a (2010).

IV. ANALYSIS

The couple was never validly married in the State of New Hampshire, their state of domicile at all relevant times. The claimant is, therefore, not considered a widow pursuant to 42 U.S.C. § 416(h)(1)(A)(i).

The couple did, however, enter into a non-marital legal relationship, a civil union, in Vermont on November 29, 2002. Therefore, even if the claimant was not validly married to the NH in New Hampshire, she can be deemed the NH’s widow if, at the time of the NH’s death, under the law applied by the courts of New Hampshire in determining the devolution of intestate personal property, she has the same status as the NH’s widow with respect to the taking of such property. See Act § 216(h)(1)(A)(ii), 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345; POMS GN 00210.004A.

In determining whether their non-marital legal relationship can be treated as a marriage for Title II benefit purposes, we first ask whether the relationship was valid in the place it was established. POMS GN 00210.004B. In Vermont, civil unions were valid between July 1, 2000 and September 1, 2009. Vt. Stat. Ann. tit. 15, § 1202 (2000) (portions repealed by Vt. Stat. Ann. tit. 15, § 8 (2009)); see POMS GN 00210.004D. Thus, the evidence supports that the couple’s civil union, which was entered into on November 29, 2002, was valid in the place and at the time it was established.

Next, we must determine if the claimant would inherit as the NH’s spouse under New Hampshire law. Under New Hampshire law, intestate inheritance rights are determined by the law of the decedent’s domicile. In re Estate of Rupert, 651 A.2d 937, 939 (N.H. 1994) (citing Eyre v. Storer, 37 N.H. 114, 120 (1858)). The NH was domiciled in New Hampshire at the time of her death. Accordingly, to determine whether the claimant has the requisite status to inherit the NH’s intestate property, we apply New Hampshire law.

In New Hampshire, the entire intestate estate of the decedent “shall descend or be distributed by decree of the probate court” to the spouse, where “there is no surviving issue or parent of the decedent.” N.H. Rev. Stat. Ann. § 561:1(I)(a) (2014). If the decedent is survived by issue and/or parents, the spouse will receive a portion of the intestate estate. Id. at §§ 561:1(I)(b)-(e). If the Vermont civil union between the claimant and the NH would allow the claimant to inherit as the NH’s “spouse” under New Hampshire law, then SSA can deem her the NH’s widow for purposes of Title II survivors’ benefits. See Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

On July 10, 2014, an Act related to the recognition of out-of-state marriages, the uniform recognition of marriages, civil union recognition, and gender-neutral references went into effect in New Hampshire. 2014 N.H. Laws Ch. 160 (S.B. 394) (amending N.H. Rev. Stat. Ann. §§ 21:3, 457:3, 457:44, 457:45). The portion of the Act relating to civil union recognition, amending N.H. Rev. Stat. Ann. § 457:45, reads:

A civil union legally contracted outside of New Hampshire, or any legal union other than a marriage that provides substantially the same rights, benefits and responsibilities as a marriage that is legally contracted outside of New Hampshire, shall be recognized as a marriage in this state, and any person in such legal union contracted outside of New Hampshire may also marry the same party in New Hampshire without the dissolution of such legal union, provided that the relationship does not violate the prohibitions of this chapter. 1

The prior version of the N.H. Rev. Stat. Ann. § 457:45, effective January 1, 2010 through July 9, 2014, which was in effect at the time of the NH’s death, reads:

A civil union legally contracted outside of New Hampshire shall be recognized as a marriage in this state, provided that the relationship does not violate the prohibitions of this chapter.

Under either the prior version of the statute or the amended version of the statute, we believe New Hampshire law would recognize the claimant as the NH’s spouse. 2 In matters of statutory interpretation, “[w]e first examine the language of the statute and ascribe the plain and ordinary meanings to the words used.” In the Matter of Watterworth & Watterworth, 821 A.2d 1107, 1111 (N.H. 2003). The plain language of both versions of § 457:45 states a civil union legally “contracted” outside the state will be recognized as a marriage. The plain meaning of the statute is, therefore, that a civil union entered into in the past is recognized as a marriage prospectively from the effective date of N.H. Rev. Stat. Ann. § 457:45. Notably, the statute does not restrict its application to civil unions entered into as of the date that civil unions became legally available in the State of New Hampshire.

New Hampshire law, therefore, recognizes civil union partners, even those civil unions entered into outside the state of New Hampshire before N.H. Rev. Stat. Ann. § 457:45 was in effect, as spouses. Because we believe New Hampshire law would recognize the claimant as the NH’s spouse at the time of the NH’s death, the claimant would be entitled to inherit the NH’s property in the absence of a will pursuant to N.H. Rev. Stat. Ann. § 561:1. Therefore, the agency can deem the claimant to be the NH’s widow under the Act. See Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345; POMS, GN 00210.004.

V. CONCLUSION

The Act provides two methods for establishing a claimant’s status as an insured’s widow. First, a claimant is an insured’s widow if she was validly married to the insured at the time she died. Second, even if a claimant was not validly married to the insured, she will be deemed the insured’s widow if she would inherit a wife’s share of the insured’s personal property if the insured died intestate. Here, the claimant satisfies the second requirement. Accordingly, the agency can deem the claimant the NH’s widow for purposes of determining her entitlement to survivor’s insurance benefits.

Dino Trubiano

Supervisory Attorney

By: ______________

Sarah Choi

Assistant Regional Counsel


Footnotes:

[1]

The marriage prohibition portion of the domestic relations laws of New Hampshire states: “No person shall marry his or her father, mother, father’s brother, father’s sister, mother’s brother, mother’s sister, son, daughter, brother, sister, son’s son, son’s daughter, daughter’s son, daughter’s daughter, brother’s son, brother’s daughter, sister’s son, sister’s daughter, father’s brother’s son, father’s brother’s daughter, mother’s brother’s son, mother’s brother’s daughter, father’s sister’s son, father’s sister’s daughter, mother’s sister’s son, or mother’s sister’s daughter. No person shall be allowed to be married to more than one person at any given time.” N.H. Rev. Stat. Ann. § 457:2 (2014).

[2]

Even if the current version of the New Hampshire statute is applied, we believe the claimant and the NH’s civil union would satisfy any additional requirements that the couple’s civil union provide substantially the same rights, benefits, and responsibilities as a marriage. 2014 N.H. Laws Ch. 160 (S.B. 394) (amending N.H. Rev. Stat. Ann. § 457:45). Under Vermont law, a civil union provided “[p]arties to a civil union . . . the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law,