TN 7 (10-16)

PR 05845.042 Pennsylvania

A. PR 16-199 The Validity of a Same-Sex New Jersey Domestic Partnership under Pennsylvania Law for Aged Spouse’s Benefits

Date: September 16, 2016

1. Syllabus

The number holder (NH) and claimant entered into a domestic partnership in New Jersey in February 2007. The claimant contacted Social Security to file an application for spouse’s benefits on the NH’s record in July 2014. New Jersey permitted same-sex couples to enter into a domestic partnerships effective July 10, 2004 which conferred “certain rights and benefits, as well as obligations and responsibilities, upon domestic partners.” New Jersey statute permits a domestic partner to inherit an intestate share of a decedent’s estate in the manner of a surviving spouse. However, the couple currently reside in Pennsylvania, therefore, we look to Pennsylvania law to determine whether the New Jersey domestic relationship qualifies as a marital relationship for benefit purposes.

Pennsylvania intestacy law makes no mention of domestic partnerships between same-sex couples but despite this, the courts equate same-sex civil unions in New Jersey with same-sex marriage due to a court ruling issued on May 20, 2014, the date when same-sex marriage in Pennsylvania was permitted. The district court explained “same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth.”

Since there is precedent in Pennsylvania case law recognizing a civil union as the equivalent of marriage and the domestic partnership between the NH and the claimant was valid when it was entered into, it is unlikely that a Pennsylvania court would prohibit recognition of the couple’s New Jersey domestic partnership in this case. Therefore, it is likely that Pennsylvania courts will recognize the New Jersey domestic partnership to permit the claimant to inherit from the NH under the Pennsylvania intestacy statutes.

2. Opinion

ISSUE PRESENTED

You asked whether Pennsylvania courts would recognize a domestic partnership entered into by a same-sex couple in New Jersey on February XX, 2007.

SUMMARY

We believe that Pennsylvania courts would recognize the valid New Jersey domestic partnership to permit the claimant to inherit from the NH under the Pennsylvania intestacy statutes.

BACKGROUND1

On February XX, 2007, G~ (the claimant) and J~ (the Number Holder) entered into a domestic partnership in W~, New Jersey.2

On July XX, 2014, the claimant contacted Social Security to file an application for aged spouse’s benefits on the record of the NH. The couple has continuously resided in Pennsylvania since the claimant filed his application for benefits.

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.” POMS GN 00210.004(B); see also 20 C.F.R. § 404.345 (agency must look to the laws of the insured’s domicile when he applied). With respect to the second inquiry, when the NH is still living, the agency must look to the domicile state’s intestacy laws at the time of the application or while the application was pending to determine whether the relationship qualifies as a marital relationship. POMS GN 00210.004(C)(2).

Thus, even though they were never married, the claimant will be considered the NH’s spouse for Social Security benefit purposes if:

(1) their domestic partnership was valid in New Jersey, and

(2) Pennsylvania law would allow members of a New Jersey domestic partnership to inherit the same share as a spouse under its intestacy laws at the time of the application. We will address each point in turn.

2. The Domestic Partnership Between the Claimant and the Wage Earner Was Valid in New Jersey

Initially, we conclude that the domestic partnership between the claimant and the wage earner was valid under New Jersey law.

New Jersey enacted legislation permitting domestic partnerships effective July 10, 2004. L. 2003, c. 246, N.J. Stat. Ann. § 26:8A-1 to -13 (West 2016). Recognizing that same-sex couples were “unable to enter into a marriage… recognized by New Jersey law,” this legislation allowed same-sex couples to enter into a domestic partnership “conferring certain rights and benefits, as well as obligations and responsibilities, upon domestic partners.” 3 N.J. Stat. Ann. § 26:8A-1 (West 2016).

To establish a domestic partnership, the couple must meet the following requirements:

(1) have a common residence and demonstrate they are otherwise jointly responsible for each other’s common welfare by showing one of the designated proofs of joint financial arrangements/ownership;

(2) agree to be jointly responsible for each other’s basic living expenses;

(3) neither party is in a marriage recognized by New Jersey law or a member of another domestic partnership;

(4) neither person is related to the other by blood or affinity up to and including the fourth degree of consanguinity;

(5) both persons are of the same sex and therefore unable to enter into a marriage with each other that is recognized by New Jersey law (except for two persons who are each 62 years of age or older and not of the same sex);

(6) both persons have chosen to share each other’s lives in a committed relationship of mutual caring;

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

(8) both persons jointly file an Affidavit of Domestic Partnership; and

(9) neither person has been in a domestic partnership that was terminated less than 180 days prior to the filing of the current Affidavit (except in the case in which one of the partners died); and, in all cases in which a person registered a prior domestic partnership, the partnership was terminated in accordance with New Jersey law. N.J. Stat. Ann. § 26:8A-4(b)(1)-(9) (West 2016).

However, effective February 19, 2007, New Jersey began recognizing civil unions, when the New Jersey Civil Union Act went into effect. L. 2006, c. 103, N.J. Stat. Ann. § 37:1-28 to -36 (West 2016).4 As of that date, couples could no longer enter into domestic partnerships unless both parties were each 62 years of age or older. N.J. Stat. Ann. § 26:8A-4.1 (West 2016). This provision did not “alter the rights and responsibilities of domestic partnerships existing before the effective date of this act, except that eligible domestic partners shall be given notice and opportunity to enter into a civil union pursuant to the provisions of this act.” Id. Significantly, New Jersey statute permits a domestic partner to inherit an intestate share of a decedent’s estate in the manner of a surviving spouse. N.J. Stat. Ann. § 3B:5-3 (West 2016); see also POMS GN 00210.004(D) (indicating that a NJ domestic partnership entered into during the requisite period confers inheritance rights).

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 in New Jersey on February XX, 2007, during the period when domestic partnerships were available prior to the effective date of the Civil Union Act. Moreover, the claimant provided a signed Certificate of Domestic Partnership, which strongly suggests that the couple satisfied the other requirements of N.J. Stat. Ann. § 26:8A-4 (West 2016).5 In addition, there is no evidence to suggest that: the parties were not of age; the parties were related by blood or affinity; either member was a party to a marriage recognized by New Jersey law or a member of another domestic partnership; or that either person had been in a domestic partnership that was terminated less than 180 days prior to the filing of the current Affidavit for Domestic Partnership. N.J. Stat. Ann. § 26:8A-4 (West 2016). Therefore, their domestic partnership appears valid under New Jersey law.6

3. Pennsylvania Courts Would Likely Recognize the Couple’s New Jersey Domestic Partnership

Background

Given that the domestic partnership between the NH and the claimant was valid in New Jersey, we consider whether Pennsylvania would recognize the domestic partnership as a relationship conveying the same inheritance rights as a spouse under its intestacy law. We believe that a Pennsylvania court would likely recognize the New Jersey domestic partnership because the Pennsylvania statutes that prohibited such recognition have been found to be unconstitutional. Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014).

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). In those circumstances, the agency “will treat the couple’s relationship as a marital relationship.” Id. Pennsylvania intestacy law governs how to distribute a decedent’s estate to his or her “surviving spouse.” 20 Pa. Cons. Stat. Ann. § 2102 (West 2016). However, neither the intestacy statute nor the case law defines the term “surviving spouse,” see 20 Pa. Cons. Stat. Ann. § 102 (West 2016)(definitions), nor have we located any case where a domestic partner seeks to collect benefits from his or her deceased partner under the Pennsylvania intestacy law. The intestacy law makes no mention of domestic partnerships between same-sex couples.

Significantly, a Pennsylvania statute defined marriage as between a man and woman. See 23 Pa. Cons. Stat. Ann. § 1102 (West 1996) (“marriage” is a “civil contract by which one man and one woman take each other for husband and wife”). Thus, by banning marriage between same-sex couples, 23 Pa. Cons. Stat. Ann. § 1102 effectively defined the term “spouse” in the intestacy law as one of the partners in a marriage between a man and woman. In addition to defining the term “marriage,” the Legislature also made clear that Pennsylvania would not recognize same-sex marriages from other jurisdictions. Under 23 Pa. Cons. Stat. Ann. § 1704, entitled “Marriage between persons of the same sex,” the law stated:

It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.

The statute was silent with respect to civil unions and domestic partnerships between same-sex couples.

However, despite the statutory gap in § 1704, Pennsylvania courts equated same-sex civil unions in New Jersey with same-sex marriage and relied on §1704 in refusing to recognize civil unions. See Himmelberger v. PA Dep’t of Revenue, No. 610-286, 2011 Pa. Dist. & Cnty. Dec. LEXIS 565, *13, *17 (Pa. Ct. of Com. Pl., Berks County, Orphans’ Court Div. Sept. 28, 2011) (finding a NJ civil union to be the equivalent of marriage and applying 23 Pa. Cons. Stat. Ann. § 1704 to void the marriage qualities of the civil union and to prohibit the spousal tax rate from being applied to the surviving partner of a NJ civil union); see also Himmelberger v. Commw. of PA Dep’t of Revenue, 47 A.3d 160, 161-62 (Pa. Commw. Ct. 2012) (adopting the analysis of the Court of the lower court and affirming for the reasons in that opinion). Id. at 161-62. Accordingly, the two Himmelberger opinions filled in the gap left by the statute. Although Section 1704 makes no mention of civil unions, the Court of Common Pleas and the Commonwealth Court equated a New Jersey civil union with marriage — essentially reading the concept of civil unions into Section 1704 — and then relied on that provision to bar recognition of the civil union for inheritance tax purposes.

Current Law

On May 20, 2014, in Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014), the U.S. District Court for the Middle District of Pennsylvania held that 23 Pa. Cons. Stat. Ann. §§ 1102 and 1704 violated the Due Process and Equal Protection Clauses of the U.S. Constitution. The District Court entered an order permanently enjoining the enforcement of these marriage laws. Id. at 431. “By virtue of this ruling,” the District Court explained, “same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth.” Id.

The Commonwealth chose not to appeal that decision to the U.S. Court of Appeals for the Third Circuit.

Current Application

Under Section 216 of the Social Security Act, an applicant may be “deemed to be the wife, husband, widow, or widower” of an insured individual if, “under the laws applied by such courts in determining the devolution of intestate personal property,” the applicant would “have the same status with respect to the taking of such property as a wife, husband, widow, or widower of such insured individual.” 42 U.S.C. § 416(h)(1)(A)(i).

As discussed, Pennsylvania intestacy law governs how to distribute a decedent’s estate to his or her “surviving spouse.” 20 Pa. Cons. Stat. Ann. § 2102 (West 2016). However, neither the intestacy statute nor the case law defines the term “surviving spouse,” see 20 Pa. Cons. Stat. Ann. § 102 (West 2016)(definitions), nor have we located any case where a domestic partner seeks to collect benefits from his or her deceased partner under the Pennsylvania intestacy law. The intestacy law makes no mention of domestic partnerships between same-sex couples.

Nevertheless, as discussed, there is precedent in Pennsylvania case law recognizing a civil union as the equivalent of marriage. See Himmelberger v. PA Dep’t of Revenue, No. 610-286, 2011 Pa. Dist. & Cnty. Dec. LEXIS 565, *13, *17 (Pa. Ct. of Com. Pl., Berks County, Orphans’ Court Div. Sept. 28, 2011) (finding a NJ civil union to be the equivalent of marriage and applying 23 Pa. Cons. Stat. Ann. § 1704 to void the marriage qualities of the civil union and to prohibit the spousal tax rate from being applied to the surviving partner of a NJ civil union). Furthermore, although in the Himmelberger case, 23 Pa. Cons. Stat. Ann. § 1704 was applied to bar a surviving partner in a NJ civil union from receiving the tax benefit of a spouse, this statute was subsequently found to be unconstitutional in Whitewood v. Wolf, 992 F. Supp. 2d 410, 431 (M.D. Pa. 2014). In Whitewood, the Middle District of Pennsylvania held, “By virtue of this ruling, same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth.” Id.

Here, the domestic partnership between the NH and the claimant was valid when it was entered into and remains valid under New Jersey law. Although there is clearly a distinction between New Jersey domestic partnerships and New Jersey civil unions with the latter providing “the same benefits and protections and . . . same responsibilities as spouses in a marriage,” N.J. Stat. Ann. § 37:1-29 (West 2016), nevertheless New Jersey intestacy law confers inheritance rights to the surviving partner in a domestic partnership. N.J. Stat. Ann. § 3B:5-3 (West 2016); see also POMS GN 00210.004(D) (indicating that a NJ domestic partnership entered into during the requisite period confers inheritance rights). In absence of any case law in Pennsylvania addressing the inheritance rights of domestic partners, we believe that a Pennsylvania court would find the Himmelberger case instructive and find that the domestic partnership relationship between the claimant and the NH, which is still in effect, is analogous to a New Jersey civil union, particularly since the relationship also confers inheritance rights under New Jersey law.7

Furthermore, given the fact that Pennsylvania’s statutory bar to recognizing same-sex marriages in other jurisdictions was found unconstitutional as of May 20, 2014, it is unlikely that a Pennsylvania court would apply the reasoning used in the Himmelberger case to prohibit recognition of the valid New Jersey domestic partnership in this case. Therefore, following the principles in Whitewood, we believe it likely that, a Pennsylvania court would recognize the valid New Jersey domestic partnership as a relationship conveying the same inheritance rights as a spouse under the Pennsylvania intestacy statutes.

CONCLUSION

Accordingly, as explained above, we believe that Pennsylvania courts would likely recognize the New Jersey domestic partnership to permit the claimant to inherit from the NH under the Pennsylvania intestacy statutes.8

Respectfully,

Nora R. Koch

Regional Chief Counsel, Region III

Tara A. Czekaj

Assistant Regional Counsel


Footnotes:

[1]

This background is based on the information provided to us in the April XX, 2016 email requesting our opinion on this issue.

[2]

You have provided a copy of the couple’s Certificate of Domestic Partnership issued by the State of New Jersey with your request.

[3]

. Although not relevant in the instant case, this legislation also permitted opposite-sex couples who were each 62 years of age or older to enter into a domestic partnership. N.J. Stat. Ann. § 26:8A-1 (West 2016).

[4]

. That law granted same-sex couples the legal right to enter into civil unions. A civil union is a “legally recognized union of two eligible individuals of the same sex” and parties to a civil union enjoy “the same benefits and protections and . . . same responsibilities as spouses in a marriage.” N.J. Stat. Ann. § 37:1-29 (West 2016). Moreover, if the parties had entered into a civil union, their domestic partnership would have be terminated pursuant to N.J. Stat. Ann. § 26:8A-4.1 (West 2016).

[5]

. The Certificate of Domestic Partnership provided includes the full names of the domestic partners, a statement that the two individuals are members of a registered domestic partnership recognized by the State of New Jersey, the date the domestic partnership was entered into, and a statement that the partners are entitled to all the rights, privileges and responsibilities accorded to domestic partners under the law, and also bears the seal of the State of New Jersey as required by N.J. Stat. Ann. § 26:8A-3 (West 2016). Although not apparent from the copy we received, we have confirmed that the field office viewed the Certificate with a raised seal.

[6]

. Significantly, as of October 21, 2013, same-sex couples may now marry in New Jersey. See Garden State Equality v. Dow, 82 A.3d 336 (N.J. Super. Ct. Law Div. 2013), stay denied 79 A.3d 479, certification granted 75 A.3d 1157, stay denied 79 A.3d 1036. Also, the Civil Union Act is still in effect; in addition to permitting same-sex marriage, New Jersey must allow same-sex couples to continue to enter into civil unions, if they so choose. See Garden State Equality, 79 A.3d at 1042. Nevertheless, you have not provided any evidence to suggest that the couple later entered into a civil union or a same-sex marriage.

[7]

. We note that the instant case is a claim for aged spouse’s benefits. We caution that the result in a Title II child’s insurance benefits claim in which a non-biological parent was the domestic partner of the child’s biological parent may not be the same because New Jersey domestic partnerships do not provide all the family law protections provided to married couples. See Lewis v. Harris, 908 A.2d 196, 216 (N.J. 2006). For example, there is no comparable presumption of dual parentage to the non-biological parent of a child born to a domestic partner, N.J. Stat. Ann. § 9:17-43, 44 (West 2016). Id.

[8]

. Given the limited scope of your request, we do not express an opinion about whether the agency’s requirements for aged spouse’s benefits in this case are satisfied.


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PR 05845.042 - Pennsylvania - 10/28/2016
Batch run: 10/28/2016
Rev:10/28/2016