QUESTION PRESENTED
Whether a Delaware civil union that was converted to a same-sex marriage between W~
(claimant) and S~ (NH) satisfies the Social Security Act’s (Act) nine-month marital
durational requirement for purposes of entitlement to surviving spouse’s benefits.
OPINION
Yes. The converted civil union between the claimant and the NH satisfies the nine-month
durational requirement for entitlement to surviving spouse’s benefits. The parties
entered into a civil union on January 25, 2012, approximately 20 months before the
NH’s death. The NH died on September XX, 2013, two months after the claimant and the
NH applied for and received a Marriage License and Certificate of Marriage. Delaware
statute provides that the effective date of a relationship that was converted from
a civil union to a same-sex marriage is the date the original civil union was solemnized.
Accordingly, the effective date of the parties’ marriage is January XX, 2012, and
their marriage satisfies the Act’s nine-month durational requirement.
BACKGROUND[1]
On January 1, 2012, after passage of the Civil Union and Equality Act of 2011, the
state of Delaware began recognizing civil unions between same-sex partners. See Del. Code Ann. tit. 13, § 201 et seq. On January XX, 2012, the claimant and the NH
entered into a civil union in Wilmington, Delaware.
Same-sex marriages became legal in Delaware on July 1, 2013, with the passage of the
Civil Marriage Equality and Religious Freedom Act of 2013. See Del. Code Ann. tit. 13, § 218. The next day, July 2, 2013, the claimant and the NH
applied for and received a Marriage License and Certificate of Marriage from the state
of Delaware. The Marriage License and Certificate of Marriage states that the claimant
and the NH’s relationship was, “Converted from a civil union to a marriage on 07/02/2013,
in accordance with H.B. 75/Title 13, Ch. 1 of the Delaware Code.” The document further
indicates that the claimant and the NH were united in marriage on
January XX, 2012, the date that the parties solemnized their civil union.
The NH died on September XX, 2013. No actions were taken by either party to terminate
the civil union or the converted marriage prior to the NH’s death. In October 2013,
the claimant applied for benefits as the NH’s surviving spouse. The claimant received
the Lump Sum Death Payment (LSDP) [2] in March 2014 on the NH’s account, but was denied any other surviving spouse’s benefits.
On April 1, 2014, the claimant filed a Request for Reconsideration and supporting
letter seeking additional surviving spouse’s benefits.
You asked whether the Act’s nine-month duration of marriage requirement can be met
where a civil union was later converted to a marriage and the combined period exceeds
nine months. To answer this question, we must determine the effective date of the
parties’ converted same-sex marriage. If the effective date of the marriage relates
back to the date the civil union was celebrated, then the relationship between the
claimant and the NH satisfies the Act’s nine-month durational requirement. [3]
ANALYSIS
A claimant can demonstrate entitlement to surviving spouse’s benefits if he is the
NH’s widower [4] and the marriage lasted for at least nine months immediately preceding the NH’s death.
See Section 216(g)(1)(E) of the Act; 20 C.F.R. §§ 404.335(a)(1), 404.345. At the time
of the NH’s death, the parties were living in Delaware. Under these circumstances,
we decide whether the Act’s marital durational requirement was met by applying Delaware
law. See Section 216(h)(1)(A)(i) of the Act; 20 C.F.R. § 404.345; POMS GN 00210.006(B)(1).
Delaware began recognizing and authorizing same-sex marriages on July 1, 2013. See Del. Code Ann. tit. 13, § 218. After July 1, 2013, no new civil unions were permitted.
Parties who had previously entered into a civil union in Delaware could choose to
either (a) apply for a marriage license and have their civil union legally converted
to a marriage by operation of law at the time of the application without solemnization,
or (b) apply for a marriage license and have their civil union legally converted to
a marriage by operation of law upon the solemnization of the marriage. See Del. Code Ann. tit. 13, § 218(b). If neither action was taken by the parties to a
civil union prior to July 1, 2014, their civil union was automatically converted to
a marriage by operation of law on July 1, 2014. See Del. Code Ann. tit. 13, § 218(c). In all of the above circumstances, “the effective
date of such marriage shall be deemed to be the date of solemnization of such original
civil union.” See Del. Code Ann. tit. 13, §§ 218(b), (c).
As noted above, the claimant and the NH solemnized their civil union on January 25,
2012. In July 2013, they applied for a marriage license and had their civil union
legally converted to a marriage by operation of law without solemnization. Under Delaware
law, the effective date of their marriage is January 25, 2012. The NH died approximately
20 months after the effective date of the parties’ marriage. Accordingly, the converted
marriage satisfies the Act’s nine-month durational requirement for eligibility for
surviving spouse’s benefits.
CONCLUSION
For the reasons stated above, the parties’ converted marriage satisfied the Act’s
nine-month durational requirement because the effective date of their marriage is
January XX, 2012, more than nine months before the NH’s death. If the claimant satisfies
the other requirements for entitlement to surviving spouse’s benefits, his Request
for Reconsideration should be granted.
Nora Koch
Acting Regional Chief Counsel, Region III
By: ______________
Elizabeth A. Corritore
Assistant Regional Counsel