TN 12 (09-17)

PR 05845.010 District of Columbia

A. PR 17-127 Validity of California Same-Sex Partnership in the District of Columbia; Number Holder died domiciled in Mexico

Date: August 2, 2017

1. Syllabus

The number holder (NH) died while domiciled in Mexico; therefore, the agency applies the District of Columbia law to determine the status of the Claimant’s relationship to the NH. The NH and the Claimant were registered domestic partners in the State of California. The District Code will recognize non-marital relationships as domestic partnerships under District law. In the District of Columbia, each domestic partner has a right to inherit intestate from the other domestic partner to the same extent as a surviving spouse. Under the District of Columbia law, the California domestic partnership of Claimant and the NH would be recognized as a domestic partnership with the same rights as surviving spouses, for relevant purposes, including the right to inherit intestate. As a result, the Claimant could inherit intestate from the NH to the same extent as a surviving spouse under District of Columbia law. Accordingly, we believe the agency can entitle the Claimant to surviving spouse benefits and LSDP.

2. Opinion

QUESTION

You asked whether claimant R~ (Claimant), the surviving domestic partner of the number holder, M~ (NH), is entitled to surviving spouse benefits and the Lump-Sum Death Payment (LSDP).

SHORT ANSWER

Yes. Claimant and NH entered into a valid domestic partnership in California. Because the NH died domiciled in Mexico, the agency applies District of Columbia law. Under District of Columbia law, this domestic partnership conferred rights permitting Claimant to inherit intestate from NH to the same extent as a surviving spouse. Accordingly, the agency deems Claimant to be the NH’s surviving spouse for purposes of entitlement to surviving spouse benefits and LSDP.

SUMMARY OF EVIDENCE

On January XX, 2009, Claimant and NH became registered domestic partners in the State of California, as evidenced by the Certificate of Registered Domestic Partnership issued by the State of California. Based on information provided by the C~, California Field Office, the NH and Claimant resided inMexico, since February 2010. The NH died in Mexico on April XX, 2016, according to a Report of Death of a U.S. Citizen issued by the U.S. Consulate General, T~, Mexico.

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.1 See Social Security Act §§ 202(e) & (f), 216(c)(1) & (g)(1); 20 C.F.R. § 404.335. Similarly, under the Act, upon the death of an insured individual, a LSDP may be paid to the insured’s widow or widower who was living in the same household as the insured at the time of death. Social Security Act § 202(i); 20 C.F.R. § 404.391. 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 resided at the time of his or her death would find that the claimant was validly married to the insured when the death occurred.2 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’s widow or widower if, under the laws of the State where the insured had a permanent home, the claimant would be able to inherit a surviving spouse’s share of the insured’s personal property if he or she 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. See id.

In cases where the insured individual’s permanent home was not in one of the 50 States, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, or American Samoa, the agency will look to the laws of the District of Columbia in order to determine whether the claimant was the insured’s widow or widower. Social Security Act § 416(h)(1)(A); 20 C.F.R. § 404.345.

In addition to establishing that she or he is the insured’s widow or widower, 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 nine 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 satisfied3 ; (3) he or she and the insured had a child together; or (4) in the month before marrying the insured, he or she was entitled to or could have been entitled to certain benefits or payments. See Social Security Act §§ 202(e) & (f); 20 C.F.R. § 404.335.

District of Columbia Law

Pursuant to the Health Care Benefits Expansion Act of 1992 (DC Law 9-114 (effective June 11, 1992), codified at D.C. Code §§ 32-701 to 32-710), the District of Columbia (District) recognizes domestic partnerships. To establish a domestic partnership in the District, both persons must register as domestic partners by executing and filing a declaration of domestic partnership with the Mayor. D.C. Code § 32-702(a). The declaration must be signed by the domestic partners and affirm under penalty of perjury that each person:

(1) is at least 18 years old and competent to contract;

(2) is the sole domestic partner of the other person;

(3) is not married; and

(4) is in a committed relationship with the other person.

Id. In the District, each domestic partner has a right to inherit intestate from the other domestic partner to the same extent as a surviving spouse. Id. §§ 19-301, 19-302.4

Further, the District recognizes non-marital relationships established in accordance with the laws of other jurisdictions that are “substantially similar” to domestic partnerships in the District, where the term “substantially similar” is “broadly construe[d]”. Id. § 32-702(i)(1). The District Code provides that the Mayor shall establish and maintain a certified list of jurisdictions for which the District will recognize non-marital relationships as domestic partnerships under District law. Id. However, if a jurisdiction is not included in the Mayor’s certified list, the District Code directs that the non-marital relationship shall be recognized as a domestic partnership in the District if, under the laws of that jurisdiction, the relationship has all the rights and responsibilities of marriage. Id. § 32-702(i)(2). As discussed below, California is included in the Mayor’s certified list.

California Law

To establish a domestic partnership in California, both persons must file a declaration of domestic partnership with the Secretary of State, declaring that:

(1) neither person is married or a member of another domestic partnership;

(2) the two persons are not related by blood;

(3) both persons are at least 18 years of age;

(4) both persons are members of the same sex; and

(5) both persons are capable of consenting to the domestic partnership.

See Cal. Fam. Code §§ 297(b), 298.5(a).5 The Secretary of State registers the declaration of domestic partnership and issues a Certificate of Registered Domestic Partnership to the couple. Id. § 298.5(b).

In California, registered domestic partners have the same rights and responsibilities as spouses in a marital relationship. Id. § 297.5(a). Further, surviving registered domestic partners have the same rights and responsibilities as surviving spouses in a marital relationship. Id. § 297.5(c); see Cal. Prob. Code § 37.

ANALYSIS

Claimant and the NH entered into a registered domestic partnership in California on January -XX, 2009, approximately seven years before the NH’s death. The relationship therefore exceeds the nine-month duration requirement for surviving spouse benefits.6 See 20 C.F.R. § 404.335(a)(1); Program Operations Manual System (POMS) GN 00210.004.

Claimant was residing with the NH in Mexico at the time of NH’s death. Accordingly, to determine Claimant’s entitlement to surviving spouse benefits, the agency will look to District of Columbia law. If, under District laws, Claimant would be able to inherit intestate from the NH to the same extent as a surviving spouse, then the agency will deem Claimant to be the NH’s widower. See Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

The District will recognize a non-marital relationship formed in another jurisdiction – and treat it the same as a domestic partnership in the District – if: (1) the jurisdiction is included in the Mayor’s certified list of jurisdictions for which the District recognizes non-marital relationships; or (2) under the laws of the other jurisdiction, the non-marital relationship provides all the rights and responsibilities of marriage in that jurisdiction. D.C. Code § 32-702(i)(1)-(2).

Both alternatives are satisfied here.

First, California is included on the Mayor’s list as a jurisdiction for which the District will recognize non-martial relationships as domestic partnerships in the District. See D.C. Mun. Regs. tit. 29, § 8001.6(a) (providing that domestic partnerships registered in California pursuant to California Family Code § 297 et. seq. are recognized as domestic partnerships in the District).

Second, the State of California bestows the same rights and responsibilities on registered domestic partners as spouses receive in a marriage. Cal. Fam. Code § 297.5(a), (c).

Accordingly, under either alternative, the District of Columbia will recognize the California domestic partnership between Claimant and the NH as a domestic partnership in the District. See D.C. Code § 32-702(i)(1) & (2). In the District, registered domestic partners receive the same rights as married couples for relevant purposes, including the right to inherit intestate. See D.C. Code § 19-302; see also POMS GN 00210.004 (noting District domestic partnerships provide for “spousal inheritance rights”). The Claimant could therefore inherit intestate from the NH under District laws, and the agency will deem him to be the NH’s surviving spouse. See Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

In addition, because Claimant was living in the same household as the NH at the time of his death, the agency will deem Claimant to be the NH’s surviving spouse entitled to the LSDP. Social Security Act § 202(i); 20 C.F.R. § 404.391.

CONCLUSION

Because the NH was domiciled in Mexico at the time of death, the agency uses District of Columbia law to determine the status of Claimant’s relationship to the NH. Under District of Columbia law, the California domestic partnership of Claimant and the NH would be recognized as a domestic partnership with the same rights as surviving spouses, for relevant purposes, including the right to inherit intestate. As a result, Claimant could inherit intestate from the NH to the same extent as a surviving spouse under District of Columbia law. Accordingly, we believe the agency can entitle Claimant to surviving spouse benefits and LSDP.


Footnotes:

[1]

. Whether the NH died fully insured is outside the scope of this opinion. For purposes of this analysis, we assume that the NH was fully insured when he died.

[2]

. On June 26, 2013, the United States Supreme Court ruled that the Defense of Marriage Act, prohibiting the Federal Government from recognizing same-sex marriage, was unconstitutional. United States v. Windsor, 133 S. Ct. 2675 (2013). The agency may now recognize same-sex non-marital legal relationships for purposes of determining entitlement to benefits. Program Operations Manual System (POMS) GN 00210.004 (providing instructions for recognition of same-sex civil unions and domestic partnerships).

[3]

. We note that for LSDP, the duration of marital relationship requirement is not required when the couple was living in the same household. See POMS RS 00210.001.C.

[4]

. The agency recognizes that a District of Columbia domestic partnership established on or after January 26, 2006, is a type of non-marital relationship that confers inheritance rights. See POMS GN 00210.004.D.5.

[5]

. California law has permitted the registration of domestic partnerships with the Secretary of State since January 1, 2000. See 1999 Cal. Legis. Serv. Ch. 588 (A.B. 26); In re Marriage Cases, 43 Cal. 4th 757, 801 (Cal. 2008); see also POMS GN 00210.004.D.5 (recognizing California domestic partnerships established on or after January 1, 2000, as a type of non-marital relationship that confers inheritance rights).

[6]

. See also supra note 3.


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http://policy.ssa.gov/poms.nsf/lnx/1505845010
PR 05845.010 - District of Columbia - 09/18/2017
Batch run: 09/18/2017
Rev:09/18/2017