BASIC (09-14)

PR 05865.009 Delaware

A. PR 14-159 Duration of Same-Sex Marriage Between the Number Holder, S~ , SSN: ~ and the Claimant, W~, Under Delaware Law

DATE: August 22, 2014

1. SYLLABUS

The converted civil union between the claimant and the NH satisfies the nine-month durational requirement for entitlement to surviving spouse’s benefits. 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.

2. OPINION

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.

BACKGROUND1

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


Footnotes:

[1]

This legal opinion is based upon evidence provided by the Assistant Regional Commissioner, Processing Center Operations, Southeastern Program Center and includes a Request for Reconsideration and supporting letter filed by the claimant, a State of Delaware Civil Union License and Certificate of Civil Union, and a State of Delaware Marriage License and Certificate of Marriage.

[2]

If a person is fully or currently insured when he dies, a LSDP of $255 may be paid to the surviving spouse of the deceased if he or she applies for the payment within two years of the NH’s death, and if he or she was living in the same household with the NH at the time of his or her death. 20 C.F.R. §§ 404.390, 404.391.

[3]

If the effective date of the marriage is the date on which the marriage license was issued, then the marriage alone would not satisfy the durational requirement because the marriage license was issued just two months before the NH’s death. If that is the case, it is necessary to examine whether the duration of the civil union could be combined with duration of the marriage to satisfy the Act’s duration of marriage requirement. However, because the claimant’s marriage document indicates that the claimant and the NH were united in marriage on January 25, 2012, the date that the parties solemnized their civil union, we need not reach the issue of the effect of a combined civil union and marriage.

[4]

Widower is defined as the surviving husband of an individual. See Section 216(g)(1) of the Act; see also 20 C.F.R. §§ 404.345, 404.346. ---------------


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PR 05865.009 - Delaware - 12/15/2015
Batch run: 12/15/2015
Rev:12/15/2015