TN 5 (09-16)

PR 05845.009 Delaware

A. PR 16-160 Validity Same-Sex CA Partnership Under DE Law

Date: July 8, 2016

1. Syllabus

The number holder (NH) and claimant entered into a same-sex domestic partnership in California (CA) in August 2006 and moved to Delaware. The NH died in July 2013 while domiciled in Delaware and the claimant filed an application for surviving spousal benefits and lump-sum death payment (LSDP) on the NH’s record. Same-sex marriages became legal in Delaware on July 1, 2013. In addition to legalizing same-sex marriage in Delaware, Delaware statutes provide that parties to a legal union other than marriage (civil union, domestic partnership, or another relationship) between two persons of the same gender established in another jurisdiction, “shall be afforded the same rights, benefits, protections, responsibilities, obligations and duties as are afforded and imposed upon married spouses” for the purposes of Delaware law.

Even though the couple never married, the claimant is considered the NH’s spouse for benefit purposes because the same-sex domestic partnership was valid in California and Delaware recognizes the CA domestic partnership as a marital relationship under its law or would allow members of a CA domestic partnership to inherit the same share as a spouse under its intestacy laws at the time of the NH’s death. Therefore, as of July 1, 2013, Delaware would recognize the same-sex domestic partnership entered into by the claimant and the NH in California in August 2006.

2. Opinion

ISSUE PRESENTED

You have asked whether a Delaware court would recognize a domestic partnership entered into by a same-sex couple in California in August 2006 where one of the partners passed away while domiciled in Delaware in 2013.

SUMMARY

As of July 1, 2013, Delaware would recognize the same-sex domestic partnership entered into by the claimant and the Number Holder in California on August XX, 2006.

BACKGROUND1

On August XX, 2006, R~ (the claimant) and J~ (the Number Holder) entered into a same-sex domestic partnership in E~ M~, California. In late 2006, the couple moved to Delaware.

On July XX, 2013, the Number Holder passed away while domiciled in Delaware. On August XX, 2013, two weeks after the Number Holder’s death, the claimant contacted the agency to file an application for surviving spousal benefits and a lump-sum death payment (LSDP) on the Number Holder’s record as the Number Holder’s surviving spouse living in the same household (LISH) as the Number Holder at the time of his death.

DISCUSSION

1. Federal Law and Agency Guidance

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 or would allow the claimant to inherit a spouse’s share of the NH’s personal property should the NH have died without leaving a will.” POMS GN 00210.004(A), (C); see also 20 C.F.R. § 404.345 (agency must look to the laws of the insured’s domicile at the time he died).

Thus, even though they were never married, the claimant will be considered the Number Holder’s spouse for Social Security benefit purposes if (1) their same-sex domestic partnership was valid in California and (2) Delaware law would recognize the California domestic partnership as a marital relationship under its laws or would allow members of a California domestic partnership 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. The Domestic Partnership Between the Claimant and the Number Holder Was Valid in California When it Was Entered Into in 2006

Initially, we conclude that the domestic partnership between the claimant and the Number Holder was valid under California law at the time it was entered into on August XX, 2006.

California affords domestic partnerships registered with the State on or after January 1, 2000 the same rights and responsibilities as marriage. Cal. Fam. Code § 297.5(a) (West 2016); see also POMS GN 00210.004.D. California law defines domestic partners as “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” Cal. Fam. Code § 297(a) (West 2016). A domestic partnership is established when both persons file a Declaration of Domestic Partnership with the Secretary of State. Cal. Fam. Code § 297(b) (West 2016). To establish a domestic partnership, the couple must (1) not be married to someone else or a member of another domestic partnership; (2) not be related by blood; (3) be of at least 18 years of age (except in circumstances not applicable here); (4) be either members of the same sex or, if of the opposite sex, one or both are over 62 years of age and meet the eligibility requirements for old-age Social Security benefits; and (5) both be capable of consenting to the domestic partnership. Cal. Fam. Code § 297 (West 2016).

In addition, each domestic partner has a right to inherit intestate from the other domestic partner to the same extent as a surviving spouse. Cal. Fam. Code § 297.5(c) (West 2016); see also POMS GN 00210.004.D (California state-registered domestic partnerships convey spousal inheritance rights, and the agency will treat the domestic partners as if they were married).

We have no reason to doubt the validity of the domestic partnership between the claimant and the Number Holder. Based on the information provided, the couple entered into a domestic partnership on August XX, 2006, after California began conferring spouse-like inheritance rights to surviving domestic partners. In addition, the claimant has submitted a copy of a Certificate of Registered Domestic Partnership with the signature and seal of the Secretary of State. Furthermore, in addition to satisfying the registration requirement, (1) there is no evidence to show that either individual was a party to a prior domestic partnership, (2) related by blood; (3) not at least 18 years old; (4) not of the same sex; or (5) not capable of consenting to the domestic partnership. Therefore, based on the evidence provided, the domestic partnership between the claimant and the Number Holder appears to have been valid under California law at the time it was entered into on August XX, 2006.

3. Delaware Would Recognize the Couple’s California Domestic Partnership.

Accordingly, we consider:

whether Delaware would recognize the California domestic partnership as a marital relationship under its laws, or

whether Delaware would recognize the California domestic partnership as a relationship conveying the same inheritance rights as a spouse under its intestacy law on July XX, 2013, the date of the Number Holder’s death. We find that a Delaware court would likely recognize the domestic partnership under both of these circumstances on that specific date.

Delaware Recognizes Domestic Partnerships Established in Other Jurisdictions.

Same sex marriages became legal in Delaware on July 1, 2013, with the passage of the Civil Marriage Equality and Religious Freedom Act of 2013 (the “Act”). See Del. Code Ann. tit. 13, § 218. As of that date, no new civil unions were permitted and parties to civil unions were allowed to convert their civil unions to a marriage. See Del. Code Ann. tit. 13, § 218 (a).

In addition to legalizing same sex marriage in Delaware, Delaware statutes provide that parties to a legal union other than marriage (whether designated as a civil union, domestic partnership, or another relationship) between two persons of the same gender established in another jurisdiction, “shall be afforded the same rights, benefits, protections, responsibilities, obligations and duties as are afforded and imposed upon married spouses” for the purposes of Delaware law. Del. Code Ann. tit. 13, § 101(e) (West 2016) (emphasis added). For such recognition to apply, the legal union must (1) be validly entered into in such other jurisdiction; (2) not otherwise be prohibited as a marriage by reason of consanguinity as set forth in subsection (a) of this section; and (3) afford and impose on the parties substantially the same rights, benefits, protections, responsibilities, obligations, and duties of a marriage. Del. Code Ann. tit. 13, § 101(e) (1)-(3) (West 2016).

Here, we find that a Delaware court would likely recognize the California domestic partnership between the claimant and the Number Holder. The California domestic partnership was validly entered into in California on August XX, 2006, when California recognized same-sex domestic partnerships. The claimant and the Number Holder satisfied the requirement that their same-sex domestic partnership be registered with the Secretary of State. The claimant and the Number Holder would meet the eligibility requirements to enter into a marriage in the state of Delaware, as we have no evidence to suggest that it would have been prohibited by reason of consanguinity. The California domestic partnership afforded and imposed on the parties substantially the same rights, benefits, protections, responsibilities, obligations, and duties of a marriage (under California law).2 Therefore, a Delaware court would likely recognize the California domestic partnership as a marital relationship under Delaware law.

CONCLUSION

We believe that as July 1, 2013, when it began to recognize same-sex marriage, Delaware would recognize the same-sex domestic partnership entered into by the claimant and the Number Holder in California on August XX, 2006.

Respectfully,

Nora R. Koch

Acting Regional Chief Counsel, Region III

Anne von Scheven

Assistant Regional Counsel


Footnotes:

[1]

This legal opinion is based on evidence provided by the Assistant Regional Commissioner, Processing Center Operations, Mid-Atlantic Teleservice Center and includes a State of California Certificate of Registered Domestic Partnership.

[2]

Effective January 1, 2005, California statutes provided that registered domestic partners shall have the same rights, protections, and benefits and shall be subject to the same responsibilities, obligations, and duties under law as are granted to and imposed upon spouses. Cal. Fam. Code § 297.5(a) (West 2016). The amendments to the family code applied to all domestic partnerships registered with the State since January 1, 2000. See Fam. Code § 4(c); In re Marriage of Fellows, 39 Cal. 4th at 186; 2003 Cal. Legis. Serv. Ch. 421 (A.B. 205); Cal. Fam. Code § 299.3 (notifying domestic partners that amendments to the Family Code applied to their domestic partnerships even if they were registered before the change in law); POMS GN 00210.004.D.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505845009
PR 05845.009 - Delaware - 09/29/2016
Batch run: 09/30/2016
Rev:09/30/2016