TN 7 (06-17)

PR 05840.042 Pennsylvania

A. PR 17-054 The Validity of a Same-Sex Vermont Civil Union Under Pennsylvania Law for Title II Surviving Spouse Benefits and Lump Sum Death Benefit

Date: February 17, 2017

1. Syllabus

In July 2002, the number holder (NH) and the claimant entered into a same-sex civil union in Vermont. The claimant provided a Vermont license and certificate of civil union issued in August 2002. Vermont law does not define a civil union between partners of the same sex as a marriage. However, under Vermont law, same-sex couples in a civil union have all of the same benefits, protections, and responsibilities as Vermont grants to spouses in a civil marriage. We have no reason to doubt the validity of the civil union between the claimant and the NH. Based on the information provided, the couple entered into a civil union in Vermont in July 2002, during the period in which civil unions were available in Vermont.

In May 2015, the NH passed away while domiciled in Pennsylvania; therefore, we look to the Pennsylvania intestacy law to determine if Pennsylvania would recognize their civil union. There is no specific mention of civil unions between same-sex couples and we have not located any case involving inheritance by a civil union partner. However, there is Pennsylvania case law recognizing a civil union as the equivalent of marriage. In the absence of Pennsylvania case law specifically addressing a Vermont civil union, we believe that a Pennsylvania court would find the Himmelberger case instructive and find that a Vermont civil union is also the functional equivalent of marriage. As a result of that case, we believe that a Pennsylvania court would recognize a valid out-of-state civil union that conveys the rights, benefits, burdens, and responsibilities of marriage as a marriage We believe that the Pennsylvania courts would recognize a Vermont civil union as a relationship conveying the same inheritance rights as a “spouse” to allow the claimant to inherit from the NH under the Pennsylvania intestacy statutes. Therefore, the agency could deem the couple as married for purposes of determining entitlement to benefits under Title II of the Social Security Act.

2. Opinion

ISSUE PRESENTED

You asked whether Social Security should consider a same-sex couple as married for benefit purposes based on a 2002 Vermont civil union, where the number holder (NH) passed away in 2015, domiciled in Pennsylvania.

SUMMARY

We believe that the Pennsylvania courts would recognize a Vermont civil union as a relationship conveying the same inheritance rights as a “spouse” to allow the claimant to inherit from the NH under the Pennsylvania intestacy statutes. Therefore, the agency could deem the couple as married for purposes of determining entitlement to benefits under Title II of the Social Security Act.

BACKGROUND1

On July XX, 2002, L~ (the claimant) and D~ (the NH) entered into a same-sex civil union in Vermont. On May XX, 2015, the NH passed away in Pennsylvania where she was domiciled.

On July XX, 2015, the claimant contacted the agency to file an application for surviving spouse’s benefits and the LDSP as the NH’s surviving spouse, living in the same household (LISH), at the time of NH’s death.

DISCUSSION

1. Federal Law and Agency Guidance

An individual must establish a marital relationship with the NH, of at least nine months duration, in order to be entitled to widow’s or widower’s benefits. 42 U.S.C. § 402(e) & (f); 20 C.F.R. § 404.335.2 The Agency determines whether a non-marital legal relationship qualifies as a marital relationship using the intestacy laws of the state of the NH’s domicile when he or she died. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. A “non-marital legal relationship (such as a civil union, domestic partnership, or reciprocal beneficiary relationship) can be treated as a marital relationship for purposes of determining entitlement to benefits” if two requirements are met:

(1) the non-marital legal relationship “was valid in the place it was established” and

(2) it “qualifies as a marital relationship using the laws of the state of the [number holder’s] domicile.” POMS GN 00210.004(B). Here, the NH and claimant entered into a Vermont civil union; however, the NH was domiciled in Pennsylvania at the time of death.

Thus, even though they were never married, the claimant will be considered the NH’s spouse for Social Security benefit purposes if (1) their civil union was valid in Vermont and (2) Pennsylvania law would have allowed members of a Vermont civil union to inherit the same share as a spouse under its intestacy laws at the time of the NH’s death. We will address each point in turn.

2. Vermont Law

Initially, we conclude that the civil union between the claimant and the NH was valid under Vermont law.

In this case, the claimant provided a Vermont license and certificate of civil union issued on August XX, 2002.3 To establish a Vermont civil union, the parties must (1) not be a party to another civil union or marriage; (2) be of the same sex; and (3) meet the criteria and obligations set for in 18 V.S.A. chapter 106 (pertaining to records and licenses). See Vt. Stat. Ann. tit. 15, § 1202 (West 2016). Civil unions entered into in Vermont from July 1, 2000, through September 1, 2009, are valid in Vermont.4 See Vt. Stat. Ann. tit. 15, § 1202 (portions repealed by Vt. Stat. Ann. tit. 15, § 8 (West 2009)); 1204(a) (West 2009); POMS GN 00210.004(D).

Vermont law does not define a civil union between partners of the same sex as a marriage. See Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951, 962 (Vt. 2006) (citing Baker v. State, 744 A.2d 864, 869 (Vt. 1999)). However, under Vermont law, same-sex couples in a civil union have all of the same benefits, protections, and responsibilities as Vermont grants to spouses in a civil marriage. See Vt. Stat. Ann. tit. 15, §§ 1201(2), 1204 (West 2016); see also Baker, 744 A.2d at 886 (finding a state constitutional obligation to extend to same-sex couples the common benefit, protection, and security that Vermont law provides to opposite-sex married couples). Significantly, “[a] party to a civil union shall be included in any definition or use of the terms ‘spouse,’ ‘family,’ ‘immediate family,’ ‘dependent,’ ‘next of kin,’ and other terms that denote the spousal relationship, as those terms are used throughout the law.” See Vt. Stat. Ann. tit. 15, § 1204(b) (West 2016).

We have no reason to doubt the validity of the civil union between the claimant and the NH. Based on the information provided, the couple entered into a civil union in Vermont on July XX, 2002, during the period in which civil unions were available in Vermont. Moreover, (1) there is no indication that either individual was a party to a prior civil union or marriage, (2) both individuals were females, and (3) they appear to have met the criteria and obligations pertaining to records and licenses as evidenced by the documentation provided. Therefore, their civil union appears valid under Vermont law.

3. Pennsylvania Law

Because the civil union between the NH and the claimant was valid in Vermont, we ask whether Pennsylvania would have recognized the civil union as a relationship conveying the same inheritance rights as a spouse under its intestacy law on May XX, 2015, the date the NH died. We find it likely that a Pennsylvania court would recognize the Vermont civil union to allow the claimant to inherit as the “spouse” of the NH under Pennsylvania intestacy statutes.

Pennsylvania intestacy law sets out a surviving spouse’s rights to a decedent’s estate. 20 Pa. Cons. Stat. Ann. § 2102 (West 2016). However, neither the intestacy statute nor the case law defines the term “surviving spouse,” see 20 Pa. Cons. Stat. Ann. § 102 (West 2016) (definitions). There is no specific mention of civil unions between same-sex couples and we have not located any case involving inheritance by a civil union partner.

Although the provisions of the Pennsylvania intestacy statute do not define the term “surviving spouse,” the Legislature amended its marriage laws in 1996 to define marriage between a man and woman. See 23 Pa. Cons. Stat. Ann. § 1102 (“marriage” is a “civil contract by which one man and one woman take each other for husband and wife”). The exclusion of same-sex couples effectively limited the term “spouse” in the context of intestacy law to opposite-sex relationships. 23 Pa. Cons. Stat. Ann. § 1102.

In addition to defining the term “marriage,” the Legislature specifically prohibited recognition of same-sex marriages from other jurisdictions, stating:

It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.

23 Pa. Cons. Stat. Ann. § 1704. However, the statute did not include provisions regarding civil unions between same-sex couples.5

Since then, two Pennsylvania courts interpreted that provision as applying to civil unions as well. Relying on Section 1704, those courts declined to recognize a New Jersey civil union between a same-sex couple, essentially reading the concept of civil unions into Section 1704 and relying on that provision to bar recognition of the civil union. See In Himmelberger v. Pennsylvania Department of Revenue, No. 610-286, 2011 Pa. Dist. & Cnty. Dec. LEXIS 565 (Pa. Ct. of Com. Pl., Berks County, Orphans’ Court Div. Sept. 28, 2011).

However, on May 20, 2014, the U.S. District Court held that 23 Pa. Cons. Stat. Ann. §§ 1102 and 1704 violated the Due Process and Equal Protection Clauses of the U.S. Constitution and permanently enjoined enforcement of the provisions. Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014). “By virtue of this ruling,” the District Court explained, “same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth.” Id. Pennsylvania did not appeal.

While the District Court holding in Whitewood did not specificially address civil unions, there is Pennsylvania case law recognizing a civil union as the equivalent of marriage. See Himmelberger v. PA Dep’t of Revenue, No. 610-286, 2011 Pa. Dist. & Cnty. Dec. LEXIS 565, *13, *17 (Pa. Ct. of Com. Pl., Berks County, Orphans’ Court Div. Sept. 28, 2011) (finding a NJ civil union to be the equivalent of marriage and applying 23 Pa. Cons. Stat. Ann. § 1704 void the marriage qualities of the civil union and to prohibit the spousal tax rate from being applied to the surviving partner of a NJ civil union). In that case, 23 Pa. Cons. Stat. Ann. § 1704 (later found unconstitutional) was applied to bar a surviving partner in a NJ civil union from receiving the tax benefit of a spouse. Id. However, the court also opined that because “New Jersey gives civil union couples the very same rights, benefits, burdens, and responsibilities in a marriage, except the right to call themselves ‘spouses’ or ‘married’ [and] the civil union entered into in New Jersey is the equivalent of a marriage . . . [and]’” Id. at *7-8. Accordingly, the court concluded that “New Jersey has legislated that a civil union in that state is treated as — is the functional equivalent as — a marriage.” Id. at *22. As a result, we believe that a Pennsylvania court would recognize a valid out-of-state civil union that conveys the rights, benefits, burdens, and responsibilities of marriage as a marriage.

Here, the civil union between the NH and the claimant was valid when it was entered into and remained valid under Vermont law until the time of the NH’s death in 2015, after the decision in Whitewood. Although Whitewood addressed a New Jersey civil union, as in New Jersey,6 a Vermont civil union provides same-sex couples all of the same benefits, protections, and responsibilities as Vermont grants to spouses in a civil marriage. See Vt. Stat. Ann. tit. 15, §§ 1201(2), 1204 (West 2016); see also Baker, 744 A.2d at 886 (finding a state constitutional obligation to extend to same-sex couples the common benefit, protection, and security that Vermont law provides