You asked whether the claimant, P~ (Claimant), the surviving domestic partner of the
number holder, J~ (NH), is entitled to survivors’ benefits under Title II of the Social
Security Act (the Act).
No. Even assuming that the same-sex domestic partnership entered into by the claimant
and the NH in Massachusetts is valid under Massachusetts law, we believe that Massachusetts
would not recognize the domestic partnership as a non-marital legal relationship entitling
the claimant to inherit a spouse’s share of the NH’s personal property should the
NH have died without leaving a will. For that reason, the agency should not consider
the claimant to be the NH’s surviving spouse.
SUMMARY OF EVIDENCE
In February 2017, the claimant applied for survivors’ benefits on the earnings record
of the deceased NH. The claimant provided documentation that she and the NH entered
in to a “domestic partnership” in Massachusetts on October XX, 1993. The claimant
alleged that the couple began living together in a “marital” relationship in 1988
and maintained that relationship through the NH’s death in January 2017. The couple
lived in Massachusetts for the duration of their relationship, and the NH died in
Massachusetts. There is no evidence that the couple obtained a marriage license or
entered in to a “marriage” under Massachusetts law. In support of her application,
the claimant provided the following evidence:
The Town’s Copy of Record of the Domestic Partnership, entered into by the claimant
and NH on October XX, 1993 and signed by the Town Clerk;
The claimant’s Statement of Marital Relationship (SSA-754), in which she stated that
she and the NH had been living together as spouses since 1988 and that she and the
NH planned to legally marry in their thirtieth year together, which would have been
in 2018; and
Statements Regarding Marriage (SSA-753) provided by the claimant’s daughter, C~; the
NH’s brother, B~; and the NH’s sister, L~.
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”;
(2) it “qualifies as a marital relationship using the laws of the state of the NH’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 she died). To be entitled to survivors’ benefits under Title
II of the Act, a claimant must show that, among other things, she is the widow of
the insured. See Act § 202(f)(1), 42 U.S.C. § 402(e)(1). As pertinent here, the Act
defines “widow” as “the surviving wife of an individual . . . .”  42 U.S.C. § 416(c)(1). The relationship requirement can also be met if, under State
law, the claimant would be able to inherit a spouse’s share of the insured’s personal
property if she were to die without leaving a will. 42 U.S.C. § 416(h)(1)(A)(ii);
20 C.F.R. § 404.345.
Thus, even though they were never married, the claimant will be considered the NH’s
spouse, and entitled to surviving spouse’s benefits under Title II of the Act, if
(1) their same-sex domestic partnership was valid in Massachusetts and
(2) Massachusetts law considers the domestic partnership to be a marital relationship
or would allow the claimant to inherit the same share as a spouse under its intestacy
laws at the time of the NH’s death.
A. It Appears That the Domestic Partnership Between the Claimant and
the NH Was Valid in Massachusetts When It Was Entered Into in 1993.
Initially, we conclude that, at the time it was entered into, the domestic partnership
between the claimant and the NH may have been valid under Massachusetts law. Chapter
7 of the Provincetown General Bylaws was the local ordinance that governed same-sex
domestic partnerships in Provincetown, Massachusetts. See Provincetown, Mass., Gen.
Bylaws ch. 7-1 (2010) .
Although the ordinance was repealed on November 8, 2010, any rights and benefits that
were in effect prior to that date continue. Provincetown, Mass., Gen. Bylaws ch. 7-1
Those rights, which were first granted in 1993, include only:
(1) health care visitation;
(2) correctional facility visitation; and
(3) access to children and children’s school records. See Provincetown, Mass., Gen.
Bylaws ch. 2-4-6 (1993).
In addition, the ordinance specified that the term “spouse”—when used elsewhere in
the town bylaws—would include domestic partners. See Provincetown, Mass., Gen. Bylaws
ch. 7-11 (2010).
We have no reason to doubt the validity of the domestic partnership between the claimant
and the NH. Based on the information provided, the couple entered into a domestic partnership
on October XX, 1993, during the period when domestic partnerships were available in
Provincetown and prior to the repeal of the ordinance on November 8, 2010. Any rights
and benefits that were in effect prior to the repeal continued. The claimant provided
a copy of the certified record of the domestic partnership dated October XX, 1993.
Therefore, based on the evidence provided, the domestic partnership between the claimant
and the NH appears to have been valid under Massachusetts law at the time it was entered
into in 1993. For the reasons set forth below, we have not determined the extent to which the Provincetown
ordinance had any legal effect outside of Provincetown.
B. Massachusetts Would Not Recognize the Couple’s Massachusetts
Domestic Partnership as a Non-Marital Legal Relationship That Confers
Assuming the validity of the domestic partnership between the NH and the claimant,
we consider next whether the domestic partnership qualifies as a marital relationship
under Massachusetts law or would allow the claimant to inherit as a “spouse” under
Massachusetts intestacy law. POMS GN 00210.004.C.
As to the first consideration, there is no Massachusetts law stating that domestic
partnerships established by municipalities in Massachusetts are the equivalent of
As to the second consideration, the agency will consider “the claimant to be the number
holder (NH)’s spouse for benefit purposes if the state of the NH’s domicile would
allow the claimant to inherit a spouse’s share of the NH’s personal property if the
NH died without leaving a will.” POMS GN 00210.004.A; see also 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. In those circumstances,
the agency “will treat the couple’s relationship as a marital relationship.” POMS
Massachusetts sets forth the law of intestacy in the Massachusetts Uniform Probate
Code (UPC). Such law provides that when an individual dies in Massachusetts without
making a will, the decedent’s “spouse” inherits a predetermined share of the estate.
See Mass. Gen. Laws ch. 190B, Art. II, § 2-102 (West 2016). The Massachusetts UPC,
however, does not define the term “spouse,” nor does the case law define such a term,
with respect to this portion of the statute. Black’s Law Dictionary defines “spouse”
as “one’s husband or wife by lawful marriage; a married person.” See Black’s Law Dictionary
at 1410 (7th ed.).
A review of the Massachusetts marriage laws reveals no indication that a “domestic
partner” would be considered a “spouse.” See Mass. Gen. Laws ch. 207, § 1 et seq.
(West 2016). Furthermore, the Provincetown ordinance did not state that inheritance
rights were granted with domestic partnership. In fact, if the municipality had attempted
to enact such an ordinance, it would have been preempted by state law that governs
that area exclusively. See, e.g., School Committee of Boston v. City
of Boston, 421 N.E.2d 1187, (Mass. 1981) (Legislative intent to supersede local regulations
may not be expressly stated where state law deals with subject comprehensively and
may reasonably be inferred as intended to preclude exercise of any local power or
function on same subject because otherwise legislative purpose of statute would be
frustrated.). We were unable to locate any case where a domestic partner sought to
collect benefits from his or her deceased partner under Massachusetts intestacy law
or where a domestic partner tried to collect a spousal share of the deceased partner’s
estate. Further, the intestacy law makes no mention of domestic partnerships between
same-sex couples. See Woodward v. Comm’r of Soc. Sec., 760 N.E.2d 257, 262 (Mass. 2002) (citing Merchants Nat’l Bank v. Merchants Nat’l Bank, 62 N.E.2d 831 (Mass. 1945)) (“In our Commonwealth, the devolution of real and personal
property in intestacy is neither a natural nor a constitutional right. It is a privilege
conferred by statute.”).
Here, even assuming that the domestic partnership between the NH and the claimant
was valid under Massachusetts law, a review of the Massachusetts marriage laws reveals
no indication that a “domestic partner” would be considered a “spouse” such that the
intestacy laws would confer inheritance rights to the surviving partner in a domestic
partnership. See Mass. Gen. Laws ch. 207, § 1 et seq. (West 2016). Thus, under Massachusetts
law, the parties’ domestic partnership did not confer inheritance rights to the surviving
spouse and we have found no case law interpreting the statute to the contrary. Massachusetts
domestic partnerships are not the equivalent of same-sex marriages and do not provide
all rights, benefits, burdens, and responsibilities of a marriage. Therefore, we do
not believe that a Massachusetts court would find that the non-marital legal relationship
would entitle a domestic partner to inherit as a “spouse” under Massachusetts intestacy
While it may be the case that the same-sex domestic partnership entered into by the
claimant and the NH in Massachusetts is valid under Massachusetts law, Massachusetts
courts would not recognize it as a non marital legal relationship that would permit
the claimant to inherit from the NH under the State’s intestacy statutes.