TN 8 (03-17)

PR 05845.033 New Jersey

A. PR 17-042 Entitlement to Surviving Spouse’s Benefits under New Jersey Law of Same-Sex New York City Domestic Partnership

Date: February 8, 2017

1. Syllabus

The Claimant and the NH entered into a valid domestic partnership in April 1993, in New York City. Both the Claimant and the NH were living in the same household in New Jersey at the time of the NH’s death. Because the NH was domiciled in New Jersey at the time of his death, we will look to the laws of New Jersey to determine if the Claimant can collect widower’s benefits on the account of the NH. Here, the non-marital relationship is valid in the place in which it was established. The domestic partnership was valid in New York City and the Claimant and NH satisfied the requirements for entering into a domestic partnership and they were registered as domestic partners. At the time of the NH’s death, the New Jersey law allowed a surviving domestic partner to inherit a spouse’s share of the domestic partner’s personal property if the domestic partner died without leaving a will and, accordingly, the domestic partnership conveys spousal inheritance rights and is considered a marital relationship for the purpose of determining entitlement to widower’s benefits under Title II of the Act.

2. Opinion

QUESTION PRESENTED

Whether the domestic partnership of B~, the number holder (NH), and F~ (Claimant) is considered a marital relationship for the purpose of determining entitlement to widower’s benefits under Title II of the Social Security Act (the Act).

OPINION

It is our opinion that, because the domestic partnership conferred intestacy rights under New Jersey law, the domestic partnership is considered a marital relationship for the purpose of determining entitlement to widower’s benefits under Title II of the Act.

BACKGROUND1

The Claimant and the NH entered into a valid domestic partnership on April XX, 1993, in New York City. No actions were taken to terminate the domestic partnership prior to the death of the NH on May XX, 2008 in New Jersey. Both the Claimant and the NH were living in the same household in New Jersey at the time of the NH’s death.

LEGAL FRAMEWORK

A. Social Security Act and Regulations

To be entitled to benefits as the widower of an insured wage earner, a claimant must, among other requirements, have been in a valid marital relationship for at least nine months immediately prior to the insured’s death.2 Social Security Act (Act) §§ 202(f) and 216(a), (g) (defining “surviving spouse” and “widower”); Act § 216(h)(1)(A); 20 C.F.R. §§ 404.335(a)(1); 404.344-45. SSA looks to the laws of the state where the insured was domiciled at the time of his death to determine whether the claimant and insured were validly married. Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345; see Program Operations Manual System (POMS) GN 00210.004. The requirement for a valid marriage will also be met if, under State law, the claimant would inherit a spouse’s share of the insured’s personal property if the insured had died without leaving a will. Id.; GN 00210.004A, C.

Agency policy provides that we will treat a same-sex couple’s non-marital relationship (such as a civil union, domestic partnership, or reciprocal beneficiary relationship) as a marital relationship and consider a claimant to be the 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 00210.004A. To determine whether a claimant in a non-marital relationship is considered married for benefit purposes, the non-marital relationship must (1) be valid in the place in which it was established and (2) it must qualify as a “marital relationship” using the laws of the state of the NH’s domicile. POMS GN 00210.004C.

B. New York Law

Executive Order No. 48, dated January 7, 1993, created a registry for domestic partnerships between domestic partners who fulfilled a number of conditions, including that either both partners were residents of New York City, or at least one partner was employed by the City of New York. See Executive Order No. 48 (Domestic Partnership Registration Program), City of New York, Jan. 7, 1993. A domestic partnership may be entered into by two people who: 1) are

eighteen years of age or older, 2) neither of whom is married or related by blood in a manner that would bar their marriage in New York State, 3) who have a close and committed personal relationship, 4) who live together and have been living together on a continuous basis, and 5) who have registered as domestic partners and have not terminated the domestic partnership. Id. Persons may register as domestic partners if they are either 1) residents of the City of New York, or 2) at least one partner is employed by the City on the date of registration. Id. A person is not eligible to register as a domestic partner if, at the time of registration or at any time during the prior six months, he or she was registered as a member of another domestic partnership. Id. In order to register, the partners must execute a domestic partnership registration certificate and submit it to the City Clerk, who maintains a registry of domestic partnerships. Id.

In 1998, the New York City Council enacted the provisions of that and earlier executive orders into local law. See New York City, N.Y., Code §§ 3-240 n.8, 3-241 (1998); Slattery v. City of New York, 697 N.Y.S. 2d 603 (N.Y. App Div. 1st Dept. 1999) (holding that New York City’s Domestic Partners Law was valid to the extent challenged and did not conflict with State law).

New York City domestic partnerships extended rights including: visitation with domestic partners in City facilities; health benefits, bereavement and child care leave for City employees; and status as a family member for purposes of New York City-owned or operated housing. See New York City, N.Y., Code § 3-244; Lennon v. Charney, 797 N.Y.S. 2d 891 (Sup 2005); Slattery v. City of New York, 686 N.Y.S. 2d 683, 686 (N.Y. Sup. Ct. 1999), aff’d as modified by 697 N.Y.S. 2d 603 (1999). However, a New York City domestic partnership does not include intestacy rights. See Slattery, 686 N.Y.S. 2d at 688, aff’d as modified 697 N.Y.S. 2d 603 (1999).

C. New Jersey State Law

New Jersey’s Domestic Partnership Act took effect on July 10, 2004, and provided that a “domestic partnership, civil union or reciprocal beneficiary relationship entered into outside of this State, which is valid under the laws of the jurisdiction under which the partnership was created, shall be valid in this State.” N.J. Stat. Ann. § 26:8A-6(c) (2016). On December 21, 2006, the New Jersey Legislature enacted the Civil Union Act, which created civil unions for same-sex couples, effective February 19, 2007. See N.J. Stat. Ann. § 37:1-28, et seq. On February 16, 2007, the New Jersey Attorney General issued an opinion stating that same-sex relationships validly established under the laws of other jurisdictions would be recognized, beginning on February 19, 2007, either as a valid civil union or domestic partnership, but not as a same-sex marriage. Recognition in New Jersey of Same-Sex Marriages, Civil Unions, Domestic Partnerships and Other Government-Sanctioned, Same-Sex Relationships Established Pursuant to the Laws of Other States and Foreign Nations, N.J. Att’y Gen. Op. 3-2007 (Feb. 16, 2007), available at http://www.nj.gov/oag/newsreleases07/ag-formal-opinion-2.16.07.pdf (Formal Opinion 3-2007). Formal Opinion 3-2007 further stated that:

Domestic partnerships, reciprocal beneficiary relationships and other government-sanctioned, same-sex relationships that afford rights and obligations less expansive than the rights and benefits of marriage are valid in New Jersey and will provide all of the rights and obligations of a New Jersey domestic partnership.

New Jersey courts held that Formal Opinion 3-2007 was entitled to judicial deference. See Quarto v. Adams, 929 A.2d 1111, 1117 (N.J. Super. Ct. App. Div. 2007).

On June 26, 2013, the U. S. Supreme Court struck down Section 3 of the federal Defense of Marriage Act as unconstitutional and held that the Federal Government was required to provide the same rights and responsibilities to same-sex couples who were married under state law as to married couples of the opposite sex. United States v. Windsor, 570 U.S. 12 (2013). On September 27, 2013, the New Jersey courts found that civil union partners were denied equal access to federal benefits, and held that New Jersey must extend the right to civil marriage to same-sex couples. Garden State Equality v. Dow, 82 A.3d 336, 369 (N.J. Sup. Ct., 2013), stay denied 79 A.3d 479, certification granted 75 A.3d. 1157, stay denied 79 A.3d. 1036. An order accompanying the Garden State decision directed state officials to allow same-sex couples who qualified for civil marriage to marry in New Jersey beginning on October 21, 2013. See Id. The State of New Jersey Department of Health also directed recognition of out-of-state same-sex marriages, stating that “[j]ust as with opposite-sex couples, so long as [the] out-of-state marriage is consistent with the laws and public policy of New Jersey, [the] marriage is valid and recognized in this State and [the individuals] will not need to enter into a New Jersey marriage.” State of New Jersey Department of Health, Frequently Asked Questions – Same-Sex Marriage, available at http://www.nj.gov/health/vital/contact-us/faqs/ (last accessed February 7, 2017).

However, recognition of same-sex civil unions and marriages following Windsor did not apply to domestic partnerships. As noted by the State of New Jersey Department of Health, “[a] domestic partnership is still valid as it was entered into under the law in place at the time. However, [domestic partners] continue to have only the rights afforded to domestic partners and not the full rights of married couples as are given to civil union couples.” State of New Jersey Department of Health, Frequently Asked Questions – Domestic Partnership Records, available at http://www.nj.gov/health/vital/contact-us/faqs/ (last accessed February 7, 2017).

Since January 12, 2006, under New Jersey intestacy law, a surviving domestic partner will inherit a spouse’s share of a decedent’s personal property if the decedent died without leaving a will. See N.J. Stat. Ann. § 3B:5-3 (2016) (Setting out the intestate share of decedent’s surviving spouse or domestic partner); Lewis v. Harris, 188 N.J. 415, 448 (2008) (noting New Jersey’s 2005 statutory amendments extending inheritance privileges when deceased domestic partner dies without a will); POMS GN 00210.004D.5 (stating that New Jersey law provides spousal inheritance rights to domestic partners).

ANALYSIS

To determine whether a claimant in a non-marital relationship is considered married for benefit purposes, the non-marital relationship must (1) be valid in the place in which it was established and (2) it must qualify as a “marital relationship” using the laws of the state of the NH’s domicile. POMS GN 00210.004C.

Because the NH was domiciled in New Jersey at the time of his death, we will look to the laws of New Jersey to determine if the Claimant can collect widower’s benefits on the account of the NH. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345.

Here, the non-marital relationship is valid in the place in which it was established. Specifically, the Claimant and the NH entered into a valid domestic partnership on April XX, 1993 in New York City. The domestic partnership was valid in New York City because the Claimant and NH satisfied the requirements for entering into a domestic partnership and they were registered as domestic partners. See Certificate of Domestic Partnership; Executive Order No. 48 (Domestic Partnership Registration Program), City of New York, Jan. 7, 1993; New York City, N.Y., Code § 3-241; see also Slattery, 697 N.Y.S. 2d 603 (New York City’s domestic partnership law is not in conflict with New York State law). The Certificate of Domestic Partnership indicates that the Claimant and NH were both residing at the same address in New York City. See id. In addition, the Claimant affirmed that he and the NH remained in the domestic partnership until the NH’s death on May XX, 2008. See Affidavit of Domestic Partnership filed on April XX, 2009 by the Claimant with the New Jersey Division of Taxation.

Because this domestic partnership was valid under the laws of the jurisdiction under which it was created, we believe that New Jersey would recognize it as a valid domestic partnership in New Jersey. See N.J. Stat. Ann. § 26:8A-6(c); Formal Opinion 3-2007. As noted above, “[d]omestic partnerships… that afford rights and obligations less expansive than the rights and benefits of marriage are valid in New Jersey and will provide all of the rights and obligations of a New Jersey domestic partnership.” Recognition in New Jersey of Same-Sex Marriages, Civil Unions, Domestic Partnerships and Other Government-Sanctioned, Same-Sex Relationships Established Pursuant to the Laws of Other States and Foreign Nations, N.J. Att’y Gen. Op. 3-2007 (Feb. 16, 2007), available at http://www.nj.gov/oag/newsreleases07/ag-formal-opinion-2.16.07.pdf

(Formal Opinion 3-2007). As a result, we believe the domestic partnership is equivalent to a “marital relationship” for purposes of determining intestate succession under the laws of New Jersey. At the time of the NH’s death, New Jersey law allowed a surviving domestic partner to inherit a spouse’s share of the domestic partner’s personal property if the domestic partner died without leaving a will and, accordingly, the domestic partnership conveys spousal inheritance rights and is considered a marital relationship for the purpose of determining entitlement to widower’s benefits under Title II of the Act. See N.J. Stat. Ann. §§ 3B:5-3 (intestate share of domestic partner), 26:8A-6(c) (recognition of domestic partnerships entered into outside of New Jersey); POMS GN 00210.004.D.5 New Jersey (stating that New Jersey law provides spousal inheritance rights to domestic partners). As a result, for purposes of determining entitlement to benefits under the Act, the Claimant and the NH are considered to have been in a valid marital relationship for at least nine months immediately prior to the NH’s death. See Act §§ 216(a), (g), (h)(1)(A)(i); 20 C.F.R. §§ 404.335(a)(1); 404.344-45.

CONCLUSION

Because the Claimant’s New York City domestic partnership with the NH conferred intestacy rights under New Jersey law, the domestic partnership is a marital relationship for purposes of determining entitlement to widower’s benefits under Title II of the Act.


Footnotes:

[1]

This opinion is based upon evidence provided by the New York Center for Disability and Programs Support, including a Certificate of Domestic Partnership from New York and an Affidavit of Domestic Partnership filed on April XX, 2009 by the Claimant with the New Jersey Division of Taxation. A Certificate of Death was not provided.

[2]

The regulations contain exceptions to the nine-month duration requirement; however, those exceptions are not relevant to this matter. See 20 C.F.R. § 404.335(a)(2).


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http://policy.ssa.gov/poms.nsf/lnx/1505845033
PR 05845.033 - New Jersey - 03/07/2017
Batch run: 03/07/2017
Rev:03/07/2017