TN 7 (06-17)

PR 05840.050 Vermont

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 to opposite-sex married couples).

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.

CONCLUSION

We believe that a Pennsylvania court 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. As a result, the agency can deem the NH to have been the claimant’s spouse for purposes of determining entitlement to benefits under Title II of the Social Security Act.

Respectfully,

Nora R. Koch

Acting Regional Chief Counsel, Region III

Tara A. Czekaj

Assistant Regional Counsel

B. PR 17-015 Claimant’s Entitlement to Surviving Spouse Benefits in a Same-Sex Non-Marital Legal Relationship: Vermont Civil Union, Domiciled in California at Time of Death

Date: November 3, 2016

1. Syllabus

In October 2000, the Claimant and number holder (NH) entered into a same-sex civil union in the State of Vermont, as evidenced by their Vermont License and Certificate of Civil Union. The NH was domiciled in California when he died; therefore, we look to the California law to determine if the Claimant is eligible for survivor’s benefits on the number holder (NH) account. The Claimant and NH entered into a valid civil union in Vermont, which California will recognize as equivalent to a California domestic partnership. Under the California law, this civil union conferred rights permitting Claimant to inherit intestate from the NH to the same extent as a surviving spouse. Because the Claimant is not alleging he was married to the NH, we consider whether the agency will deem the Claimant to be the NH’s widower in light of the couple’s civil union, such that the Claimant is entitled to surviving spouse benefits on the NH’s record. In this case, the civil union between NH and Claimant would be recognized under California law such that the Claimant could inherit to the same extent as a surviving spouse if the NH died without a will. California will recognize a civil union established in Vermont as long as the union:

(1) was validly formed in another jurisdiction, and

(2) is substantially equivalent to a domestic partnership in California.

Here, the civil union between the NH and the Claimant satisfied these requirements. Therefore, under the California law, the Claimant would be entitled to inherit to the same extent as a surviving spouse if NH died intestate. Accordingly, the agency deems the Claimant to be the NH’s widower entitling the Claimant to surviving spouse benefits on the NH’s record.

2. Opinion

QUESTION

You asked whether claimant R~ (Claimant) is entitled to payment of surviving spouse benefits under the record of the decreased number holder, T~ (NH), where the couple entered into a civil union in Vermont and were domiciled in California when the NH died.

SHORT ANSWER

Yes. Claimant and NH entered into a valid civil union in Vermont, which California will recognize as equivalent to a California domestic partnership. Under California law, this civil union conferred rights permitting Claimant to inherit intestate from NH to the same extent as a surviving spouse. Accordingly, the agency deems Claimant to be NH’s surviving spouse for purposes of entitlement to surviving spouse benefits.

SUMMARY OF EVIDENCE

On October XX, 2000, Claimant and NH entered into a same-sex civil union in the State of Vermont, as evidenced by their Vermont License and Certificate of Civil Union. The Claimant and NH neither registered their civil union nor filed for a domestic partnership with the State of California. Based on information provided by the Palms Springs Office, the NH and Claimant resided in Cathedral City, California, where the NH died on June XX, 2010. Thereafter, on June XX, 2016, Claimant filed for surviving spouse’s benefits on the NH’s record.

APPLICABLE LAW

Federal Law

To be entitled to survivor’s benefits under Title II of the Social Security Act (Act), a claimant must establish that she or he is the widow or widower of an individual who died fully insured. See Social Security Act §§ 202(e), (f), 216(c)(1), (g)(1); 20 C.F.R. § 404.335. Under Section 216(h) of the Act, the agency will find a claimant to be the widow or widower of an insured individual if the courts of the State in which the insured individual resided at the time of his or her death would find that the claimant was validly married to the insured individual when the death occurred. Social Security Act § 216(h)(1)(A)(i). However, even if the claimant was not married to the insured individual, the agency will deem the claimant to be the insured individual’s widow or widower if, under the laws of the State where the insured individual had a permanent home, the claimant would be able to inherit a surviving spouse’s share of the insured individual’s personal property if she or he died without leaving a will. Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345. Under such circumstances, the agency will treat the couple’s relationship as a marital relationship. Id.

In addition to establishing that she or he is the insured’s widow or widower under the laws described above, to recover surviving spouse benefits, the claimant must show that she or he meets one of the following conditions:

(1) his or her relationship to the insured as wife or husband lasted for at least 9 months immediately before the insured died;

(2) his or her relationship to the insured as wife or husband did not last for at least 9 months but another qualifying condition is satisfied;

(3) he or she and the insured had a child together; or

(4) the month before marrying the insured, he or she was entitled to or could have been entitled to certain benefits or payments; or

20 C.F.R. § 404.335; see also Social Security Act, § 202(e), (f).

California Law

In 1999, the California Legislature enacted Assembly Bill 26, which allowed same-sex couples to enter into domestic partnerships effective October 10, 1999. The California Legislature later passed other legislation that expanded rights and responsibilities for registered same-sex domestic partners. To enter into a same-sex domestic partnership, individuals must file a Declaration of Domestic Partnership with the Secretary of State and meet the following requirements:

(1) not be married to someone else or a member of another domestic partnership that has not been terminated;

(2) not be related by blood;

(3) be at least 18 years old; and

(4) be capable of consenting to a domestic partnership.

Cal. Fam. Code § 297.

California Family Code section 297.5 provides that registered domestic partners have the same rights, protections, benefits, responsibilities, obligations, and duties “as are granted to and imposed upon spouses.” Cal. Fam. Code § 297.5(a). Moreover, each domestic partner has a right to inherit intestate from the other domestic partner to the same extent as a widow or widower. Cal. Fam. Code § 297.5(c); see also Program Operations Manual System (POMS) GN 00210.004.D (noting California state-registered domestic partnerships convey spousal inheritance rights such that the agency will treat the domestic partners as if they were married for the purpose of determining benefit eligibility). Furthermore, California construes “gender-specific terms referring to spouses . . . to include domestic partners.” Cal. Fam. Code § 297.5(j).

Regardless of whether a legal union bears the name domestic partnership, California law recognizes non-marital same-sex legal unions formed in other jurisdictions as domestic partnerships in California as long as the union (1) was validly formed in another jurisdiction and (2) is substantially equivalent to a domestic partnership in California. Cal. Fam. Code § 299.2.

Vermont Law

Beginning on July 1, 2000, Vermont established civil unions to provide same-sex couples all the benefits, protections, and responsibilities under the law as are granted to spouses in a marriage. Thereafter, on September 1, 2009, the General Assembly of the State of Vermont enacted “An Act to Protect Religious Freedom and Recognize Equality in Civil Marriage” (Marriage Equality Act). Id. The Marriage Equality Act redefined marriage as “the legally recognized union of two people.” Vt. Stat. Ann. tit. 15, § 8. As such, the Marriage Equality Act eliminated the need for the separate status of civil unions in Vermont. Consequently, as of September 1, 2009, civil unions are no longer available in Vermont; however, civil unions entered into prior to September 1, 2009, are valid in Vermont.

Prior to September 1, 2009, to enter into a civil union in Vermont, individuals had to file a “Certificate of Civil Union” and meet the following requirements:

(1) not be a party to another civil union or marriage;

(2) be of the same sex;

(3) be unrelated by blood in a manner closer than that of a first cousin;

(4) be at least 18 years old; and

(5) be of sound mind.

Vt. Stat. Ann. tit. 15, §§ 1201(1) (repealed in part by Vt. Stat. Ann. tit. 15, § 8 (effective 2009)), 1202; 1203; Vt. Stat. Ann. tit. 18 § 5163 (repealed in 2009).

Parties to a civil union “have all the same benefits, protections, and responsibilities under law” as bestowed upon spouses in a civil marriage, including laws related to the intestate distribution of property. Vt. Stat. Ann. tit. 15, §§ 1204(a), 1204(c) and 1204(e)(1). Likewise, a partner in a civil union “is included in the definition or use of the term ‘spouse’ . . . and other terms that denote the spousal relationship, as those terms are used throughout the law.” Vt. Stat. Ann. tit. 15, § 1204(b).

ANALYSIS

Because the Claimant is not alleging he was married to the NH, we consider whether the agency will deem the Claimant to be the NH’s widower in light of the couple’s civil union, such that the Claimant is entitled to surviving spouse benefits on the NH’s record.

A. The Civil Union Meets the Agency’s Duration Requirement

Claimant and NH entered into a Vermont civil union over nine years before the NH’s death on June XX, 2010. The relationship therefore exceeded the nine-month duration requirement for surviving spouse benefits. See 20 C.F.R. § 404.335(a)(1); POMS GN 00210.004.E.

B. The Civil Union Was Validly Formed Under Vermont Law

Based on the copy of the Certificate of Civil Union the Claimant provided to the agency, Claimant and NH entered into a civil union in Vermont on October XX, 2000, soon after Vermont’s civil union law became effective. As required under Vermont law in effect at that time, Claimant and NH each signed a civil union license, in which they attested to their compliance with Vermont legal requirements for civil unions. When the Town Clerk and Justice of the Peace certified the civil union license, it became a Certificate of Civil Union under Vermont law. See Vt. Stat. Ann. tit. 18 § 5160 et seq. (repealed). The Town Clerk filed the original civil union certificate on October XX, 2000, in B~, Vermont. Therefore, the couple entered into a valid civil union under Vermont Law. See Vt. Stat. Ann. tit. 18 § 5160 et seq. (repealed) (setting forth the procedures in Vermont to issue civil union licenses and civil union certificates prior to September 1, 2009).

C. Because Claimant Could Inherit Intestate from NH Under California Law, the Agency Will Deem Claimant the Widower of NH

Even though Claimant and NH were not married, the agency will deem Claimant to be the NH’s widower if, under the laws of the State of California (i.e., where the NH had a permanent home), Claimant would be able to inherit a surviving spouse’s share of NH’s personal property if NH died without leaving a will. Accordingly, to determine Claimant’s entitlement to surviving spouse benefits, the agency will look to California law. See Social Security Act, § 216(h)(1)(A)(ii); 20; C.F.R. § 404.345.

Under California law, parties to a domestic partnership receive the same rights as married couples, including the right to inherit to the same extent as a surviving spouse. Cal. Fam. Code §§ 297.5(a) and 297.5(c); see also POMS GN 00210.004 (noting California domestic partnerships provide for spousal inheritance rights). While NH and Claimant neither entered into a domestic partnership in California, nor registered their Vermont civil union in California, the State of California will recognize a legal union formed in another jurisdiction—and treat it the same as a California domestic partnership—as long as the relationship (1) was validly formed in that other jurisdiction and (2) is substantially equivalent to a domestic partnership in California. See Cal. Fam. Code § 299.2.

As noted above, Claimant and NH entered into a valid Vermont civil union. Additionally, a Vermont civil union is “substantially equivalent” to a California domestic partnership because California and Vermont both require that same-sex partners to a legal union (1) not be a partner in another union or a spouse in a marriage; (2) be at least eighteen years old; (3) not be related by blood in such a manner as to preclude them from being married; and (4) be capable of consent. Cal. Fam. Code §§ 297, 299.2; Vt. Stat. Ann. tit. 15, §§ 1201(1), 1202, 1203 (repealed in part by Vt. Stat. Ann. tit. 15, § 8); Vt. Stat. Ann. tit. 18 § 5163 (repealed in 2009). Therefore, the civil union between NH and Claimant would be recognized under California law such that the Claimant could inherit to the same extent as a surviving spouse if the NH died without a will.

CONCLUSION

California will recognize a civil union established in Vermont as long as the union:

(1) was validly formed in another jurisdiction, and

(2) is substantially equivalent to a domestic partnership in California.

Cal. Fam. Code § 299.2. Here, the civil union between NH and Claimant satisfied these requirements. Therefore, under California law, Claimant would be entitled to inherit to the same extent as a surviving spouse if NH died intestate. Accordingly, the agency deems Claimant to be the NH’s widower entitling Claimant to surviving spouse benefits on the NH’s record.


Footnotes:

[1]

This background is based on the information provided to us in the April 22, 2016 e-mail requesting our opinion on this issue.

[2]

However, there is no nine-month duration requirement for lump sum death benefits. 42 U.S.C. § 402(i)); 20 C.F.R. § 404.391.

[3]

The certificate of civil union appears valid on its face and an SSA employee confirmed that the document contained the Vermont state seal.

[4]

Effective September 1, 2009, Vermont permitted civil marriage for same-sex couples. See Vt. Stat. Ann. tit. 15, § 8 (2009)