TN 6 (10-16)

PR 05845.014 Hawaii

A. PR 16-161 Domestic Partner’s Entitlement to Spouse’s Benefits: Hawaii’s Recognition of a California Same-Sex Domestic Partnership

Date: July 13, 2016

1. Syllabus

The number holder (NH) and claimant entered into a California domestic partnership in August 2003 and currently resides in Hawaii. Since the couple are domiciled in Hawaii, we look to Hawaii law. Effective January 1, 2012, Hawaii law began providing for state recognition of civil unions. Partners to a civil union receive the same rights, benefits, protections, and responsibilities as married spouses under Hawaii law. Therefore, civil union partners inherit intestate to the same extent as spouses. Hawaii also recognizes non-marital legal unions formed in other jurisdictions and treats them like civil unions entered into in Hawaii.

Hawaii will recognize the California domestic partnership between the couple because it meets the requirements for a valid non-marital legal relationship under both California and Hawaii law. Since the claimant would inherit intestate from the NH under Hawaii law to the same extent as a surviving spouse, the agency will deem the claimant to be the NH’s spouse pursuant to section 216(h)(1)(A)(ii) of the Social Security Act.

2. Opinion

QUESTION

You asked whether D~ (Claimant) is entitled to spouse’s benefits on the record of the number holder (NH), T~, where the couple entered into a California domestic partnership in August 2003 and currently reside in Hawaii.

SHORT ANSWER

Yes. Hawaii will recognize the California domestic partnership between Claimant and the NH because the domestic partnership meets the requirements for a valid non-marital legal relationship under both California and Hawaii law. Because Claimant would inherit intestate from the NH under Hawaii law to the same extent as a surviving spouse, the agency will deem Claimant to be the NH’s spouse pursuant to section 216(h)(1)(A)(ii) of the Social Security Act (Act).

SUMMARY OF EVIDENCE

On August XX, 2003, Claimant and the NH became registered domestic partners in the State of California. On August XX, 2010, the NH filed for old-age retirement benefits. On January XX, 2016, Claimant filed for spouse’s benefits on the NH’s record. The couple currently lives in P~, Hawaii.

APPLICABLE LAW

Federal Law

To be entitled to wife or husband’s benefits under Title II of the Act, a claimant must establish that she or he is the wife or husband of an individual entitled to old-age or disability insurance benefits.1 See Social Security Act § 202(b), (c); 20 C.F.R. § 404.330. Under section 216(h) of the Act, the agency will find a claimant to be the wife or husband of an insured individual if the courts of the State in which the insured individual resided at the time of application would find that the claimant is validly married to the insured individual. 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 spouse 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. § 404.345.2

Hawaii Law

Effective January 1, 2012, Hawaii law began providing for State recognition of civil unions. Haw. Rev. Stat. ch. 572B. To be eligible, the partners to a civil union must (1) not already be a partner in another civil union or a spouse in a marriage; (2) be at least eighteen years old; and (3) not be related by blood to the other partner. Haw. Rev. Stat. § 572B-2. Partners to a civil union in Hawaii receive the same rights, benefits, protections and responsibilities as married spouses under Hawaii law. Haw. Rev. Stat. § 572B-9. Furthermore, a partner to 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 laws of the State.” Haw. Rev. Stat. § 572B-11. Thus, civil union partners inherit intestate to the same extent as spouses. See Haw. Rev. Stat. § 560:2-102 (providing for the inheritance rights of a decedent’s “spouse”).

Hawaii also recognizes non-marital legal unions formed in other jurisdictions and treats them like civil unions entered into in Hawaii as long as the union (1) satisfies civil union eligibility requirements under Hawaii law; (2) was validly formed in another jurisdiction in accordance with its laws; and (3) can be documented. Haw Rev. Stat. § 572B-10.

California Law

In California, two people may establish a domestic partnership if they file a declaration of domestic partnership with the California Secretary of State, and meet the following criteria:

neither person has an ongoing marriage or domestic partnership with someone else;

the two persons are not related by blood;

both persons are at least 18 years of age;

both persons are capable of consenting to the domestic partnership; and

either (A) both persons are members of the same sex, or (B) at least one of the persons meet the eligibility requirements for old-age Social Security insurance benefits, provided that one or both of them is over 62 years of age.

Cal. Fam. Code § 297(b).

ANALYSIS

Claimant and the NH are domiciled in Hawaii. Accordingly, to determine Claimant’s entitlement to spouse’s benefits, the agency will look to Hawaii law. If, under the laws of Hawaii, Claimant would inherit intestate from the NH to the same extent as a surviving spouse, then the agency will deem Claimant to be the NH’s spouse. See Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

Under Hawaii law, partners to a civil union receive the same rights as a married couple, including the right to inherit intestate from each other to the same extent as a surviving spouse. Haw. Rev. Stat. §§ 572B-9, 572B-11; see also POMS GN 00210.004 (noting Hawaii civil unions provide for spousal inheritance rights). Hawaii will recognize a legal union formed in another jurisdiction – and treat it the same as a Hawaii civil union – as long as the relationship (1) satisfies Hawaii’s civil union eligibility requirements; (2) was validly formed in another jurisdiction; and (3) can be documented. Haw. Rev. Stat. § 572B-10.

Claimant and the NH entered into a California domestic partnership on August XX, 2003.3 We have no information suggesting they did not meet the criteria for a valid domestic partnership under California law. See Cal. Fam. Code § 297(b). Specifically, Claimant and the NH were at least 18 years old, and they are members of the same sex. The couple asserted in their notarized declaration that they were not related by blood, were not in an ongoing marriage or domestic partnership with another person, and were capable of consenting to the domestic partnership. Accordingly, Claimant and the NH validly contracted their domestic partnership under California law.

Furthermore, the California domestic partnership satisfies Hawaii’s civil union eligibility requirements. The criteria necessary for entering into a domestic partnership in California include the requirements for entering into a civil union in Hawaii.4 Therefore, since Claimant and the NH met the requirements for contracting a domestic partnership under California law, they likewise satisfied the eligibility requirements for entering a civil union under Hawaii law.

Finally, because Claimant’s California domestic partnership with the NH is documented and meets all other criteria of Hawaii law, Hawaii will recognize the California domestic partnership and treat it the same as a Hawaii civil union. See Haw Rev. Stat. § 572B-10. Thus, under Hawaii law, Claimant would inherit intestate from the NH to the same extent as a surviving spouse, and the agency will deem them married for purposes of entitlement to spouse’s benefits. See Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

CONCLUSION

The California domestic partnership between Claimant and the NH meets the criteria for a valid non-marital legal relationship under the laws of California and Hawaii. Accordingly, Hawaii treats the domestic partnership the same as a Hawaii civil union, permitting Claimant to inherit intestate from the NH to the same extent as a surviving spouse. The agency therefore deems Claimant to be the NH’s spouse for purposes of entitlement to spouse’s benefits.

B. PR 15-139 Surviving Domestic Partner’s Entitlement to Surviving Spouse Benefits Where the Relationship Was Established in Oregon but the Number Holder Resided in Hawaii at the time of His Death

Date: May 22, 2015

1. Syllabus

Hawaii recognizes the validity of domestic partnerships and other non-marital legal unions contracted in other jurisdictions so long as they were validly entered under the laws of the contracting jurisdiction.

When Hawaii is the domicile state for survivor’s benefit purposes, these out-of-state domestic partnerships and non-marital legal unions can confer intestate inheritance rights under Hawaii law.

2. Opinion

QUESTION

You asked whether claimant R~ (Claimant), the surviving domestic partner of the number holder, J~ (NH), is entitled to payment of surviving spouse benefits.

SHORT ANSWER

Yes. Claimant and NH entered into a valid domestic partnership in Oregon. Under Hawaii 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.

SUMMARY OF EVIDENCE

On February XX, 2008, Claimant and NH became registered domestic partners in the State of Oregon, as evidenced by their filed Declaration of Domestic Partnership. Based on information provided by the H~ D~ Office, the NH and Claimant resided in W~, Hawaii, since October 2011. The NH died in H~, Hawaii on July XX, 2014, according to a Certificate of Death issued by the Hawaii Department of Health.

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.5 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.6 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 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 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) 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.

Hawaii Law

In 2011, the Hawaii Legislature amended the Hawaii Revised Statutes to allow individuals to enter into civil unions effective January 1, 2012. Haw. Rev. Stat. ch. 542B.7 To be eligible, the individuals must (1) not already be a partner in another civil union or a spouse in a marriage; (2) be at least eighteen years old; and (3) not be related by blood to the other partner. Haw. Rev. Stat. § 572B-2; see also § 572B-3 (listing family relationships where a civil union would be void). Partners to a civil union in Hawaii receive the same rights, benefits, protections and responsibilities as spouses that are married under Hawaii law. Haw. Rev. Stat. § 572B-9.

Furthermore, partners to a civil union have “spouse-like” inheritance rights. A partner to 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 laws of the State.” Haw. Rev. Stat. § 572B-11. Thus, civil union partners inherit the same as spouses. See Haw. Rev. Stat. § 560:2-102 (providing for the inheritance rights of a decedent’s “spouse”).

Hawaii law recognizes non-marital legal unions formed in other jurisdictions and treats them like civil unions entered into in Hawaii as long as the union (1) satisfies civil union eligibility requirements under Hawaii law; (2) was validly formed in another jurisdiction in accordance with its laws; and (3) can be documented. Haw Rev. Stat. § 572B-10.

Oregon Law

In 2007, the Oregon State Legislature enacted the Oregon Family Fairness Act, allowing same-sex couples to enter into domestic partnerships effective February 4, 2008. See 2007 Oregon Laws Ch. 99 (H.B. 2007), §§ 1-9 (codified at Or. Rev. Stat. §§ 106.300-106.340).8 To enter into a domestic partnership, individuals must file a Declaration of Domestic Partnership that (1) states each person is at least 18 years old and capable of entering into a domestic partnership; (2) states at least one of the individuals resides in Oregon; (3) provides a mailing address; (4) states each individual consents to the jurisdiction of Oregon courts for any proceeding related to the partners’ rights and obligations; and (5) indicates each individual’s name after domestic partnership. Or. Rev. Stat. § 106.325. Both partners must sign and notarize the declaration. Id. Individuals cannot enter into a domestic partnership if either person is married or in another domestic partnership with a different person, or if the parties are related by blood as first cousins or closer. Or. Rev. Stat. § 106.315(1).

ANALYSIS

Claimant and NH entered into an Oregon domestic partnership over six years before the NH’s death on July XX, 2014. 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.

Claimant resided with the NH in Hawaii at the time he died. Accordingly, to determine Claimant’s entitlement to surviving spouse benefits, the agency will look to Hawaii law. If, under the laws of Hawaii, 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)(i); 20 C.F.R. § 404.345.

Under Hawaii law, since January 1, 2012, partners to a civil union receive the same rights as married couples, including the right to inherit to the same extent as a surviving spouse. See Haw. Rev. Stat. § 572B-9; Haw. Rev. Stat. § 572B-11 (providing that a party to a civil union is included in any definition or use of terms that denote a spousal relationship); Haw. Rev. Stat. § 560:2-102 (providing for intestate succession for surviving spouses); see also POMS GN 00210.004 (noting Hawaii civil unions provide for spousal inheritance rights).

Hawaii will recognize a legal union formed in another jurisdiction – and treat it the same as a Hawaii civil union – as long as the relationship (1) satisfies Hawaii’s civil union eligibility requirements; (2) was validly formed in another jurisdiction; and (3) can be documented. Haw. Rev. Stat. § 572B-10. Here, as set forth below, Claimant’s Oregon domestic partnership satisfies the requirements to be recognized under Hawaii law, such that Claimant could inherit to the same extent as a surviving spouse if the NH died intestate.

The Domestic Partnership Satisfied Hawaii’s Civil Union Requirements

Hawaii’s civil union requirements are included in the requirements to enter into a domestic partnership in Oregon.9 Therefore, since the Claimant and NH attested to their compliance with Oregon’s requirements when they entered into their domestic partnership,10 their relationship similarly satisfied Hawaii’s civil union requirements.

The Domestic Partnership Was Validly Formed Under Oregon Law

Claimant and NH entered into a domestic partnership in Oregon on February XX, 2008, soon after Oregon’s domestic partnership law became effective. See 2007 Oregon Laws Ch. 99 (H.B. 2007), §§ 1-9. As required under Oregon law, they filed a signed and notarized Declaration of Domestic Partnership, and a County Clerk thereafter signed the form and registered the partnership. See Or. Rev. Stat. § 106.325. Therefore, the couple entered into a valid domestic partnership under Oregon Law.

The Domestic Partnership Was Documented

Claimant provided the agency with a certified copy of his Declaration of Domestic Partnership, which is the operative legal document establishing his domestic partner relationship with the NH.11 Claimant, therefore, has documentation of the domestic partnership.

CONCLUSION

Hawaii will recognize a domestic partnership entered into in Oregon as long as the union (1) meets Hawaii’s civil union eligibility requirements; (2) was validly entered into under Oregon laws; and (3) can be documented. Here, the domestic partnership between the NH and Claimant satisfied these requirements. Accordingly, under Hawaii law, Claimant would be entitled to inherit to the same extent as a surviving spouse if NH died intestate. The agency therefore deems Claimant to be the NH’s spouse, entitling him to surviving spouse benefits.


Footnotes:

[1]

. In addition to establishing that she or he is the spouse of the insured individual, Claimant must also establish she or he meets the other criteria for entitlement to spouse’s benefits. See 20 C.F.R. § 404.330. You have not asked, and we have not analyzed, whether Claimant meets these other requirements.

[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]

. In 1999, California passed legislation providing for the registration of domestic partnerships with the California Secretary of State beginning July 1, 2000. See 1999 Cal. Legis. Serv. Ch. 588 (A.B. 26); In re Marriage Cases, 43 Cal. 4th 757, 801, 76 Cal. Rptr. 3d 683 (Cal. 2008); Cal. Fam. Code § 297. This initial legislation afforded domestic partners only limited substantive rights, such as hospital visitation privileges, and health coverage under state employee benefit plans. Id. see also; Cal. Health & Safety Code § 1261. In September 2003, California passed legislation expanding the rights of domestic partners. See In re Marriage Cases, 43 Cal. 4th at 802; 2003 Cal. Legis. Serv. Ch. 421 (A.B. 205). The California Domestic Partner Rights and Responsibilities Act amended the California Family Code to give domestic partners all of the same rights, protections and benefits as shared by spouses. See id.; Cal. Fam. Code § 297.5. Among the benefits extended was the right of a surviving domestic partner to inherit intestate to the same extent as a surviving spouse. Cal. Fam. Code § 297.5(c). These amendments to the Family Code became effective on January 1, 2005, but applied to all domestic partnerships registered with the State since January 1, 2000. See Cal. Fam. Code §§ 4(c), 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); In re Marriage of Fellows, 39 Cal. 4th at 186; 2003 Cal. Legis. Serv. Ch. 421 (A.B. 205); POMS GN 00210.004.D.

[4]

. More specifically, California and Hawaii both require that 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; and (3) not be related by blood to the other partner. See Haw. Rev. Stat. § 572B-2(1)–(3).

[5]

. 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.

[6]

. 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).

[7]

. In 1994, the Hawaii State Legislature enacted a law banning same-sex marriage. See

1994 Hawaii Laws Act 217 (H.B. 2312). The Legislature subsequently passed the Hawaii Marriage Equality Act, effective December 2, 2013, which legalized same-sex marriage. See 2013 Hawaii Laws 2nd Sp. Sess. Act 1 (S.B. 1) (codified at Haw. Rev. Stat. § 572-1).

[8]

. Oregon law and the State constitution provide that marriage must be between a male and a female. See Or. Rev. Stat. § 106.010; Or. Const. Art. 15, § 5A. Notably, however, on May 19, 2014, a federal district court ruled that Oregon’s ban on same-sex marriage was unconstitutional. Geiger v. Kitzhaber, 994 F. Supp. 2d 1128, 1146-48 (D. Or. 2014).

[9]

. More specifically, Oregon and Hawaii both require that partners to a legal union (1) not be a partner in another union or a spouse in a marriage (see Or. Rev. Stat. § 106.315(1)(a); Haw. Rev. Stat. § 572B-2(1)); (2) be at least eighteen years old (see Or. Rev. Stat. § 106.325(5); Haw. Rev. Stat. § 572B-2(2)); and (3) not be related by blood to the other partner (see Or. Rev. Stat. § 106.315(1)(b); Haw. Rev. Stat. § 572B-2(3)). Oregon has additional requirements beyond those mandated in Hawaii, e.g., at least one individual must be a resident of the State. See Or. Rev. Stat. §§ 106.310(1), 106.325(5)(b).

[10]

. In their Declaration of Domestic Partnership, the Claimant and NH each signed a statement attesting: “I acknowledge that I am entering into a Domestic Partnership with the party listed above . . . , I am at least 18 years of age, I and/or my partner reside in Oregon, and am otherwise capable to enter into this relationship. I declare the information and representations contained herein are true, correct and contain no material omissions of fact to the best of my knowledge and belief. I consent to the jurisdiction of the circuit courts of Oregon for the purpose of any action to obtain a judgment of dissolution or annulment of the domestic partnership or for legal separation of the partners in the domestic partnership, or for any other proceedings related to the partners’ rights and obligations . . . .”

[11]

. According to the Oregon Health Authority, the signed and notarized Declaration of Domestic Partnership is a legal document, and it validly establishes the domestic partnership once a County Clerk signs and registers it. See http://public.health.oregon.gov/BirthDeathCertificates/RegisterVitalRecords/Documents/DomPart/dpfaq.pdf (last visited May 22, 2015). After the county clerk registers the domestic partnership declaration, the partners receive a commemorative Certificate of Registered Domestic Partnership, but this Certificate is not a legal document. Id.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505845014
PR 05845.014 - Hawaii - 10/27/2016
Batch run: 10/27/2016
Rev:10/27/2016