Whether M~ and M2~, a same-sex couple, were married for purposes of determining entitlement
to widow’s benefits under the Social Security Act (“the Act”) and, if so, whether
the marriage satisfies the nine-month duration of marriage requirement set out in
Yes. M~ and M2~ were married for purposes of determining entitlement to widow’s benefits
under the Act and their marriage satisfies the nine-month duration of marriage requirement
set out in the Act.
SUMMARY OF FACTS
M~ and M2~ entered a registered domestic partnership in the State of Washington on
July XX, 2012. Subsequently, M~ and M2~ married on February XX, 2013, as evidenced
by a Washington Certificate of Marriage, State File Number 2012120XXXXXXX. M2~ died
on September XX, 2013. M2~ was domiciled in the State of Washington at the time of
her death. M~ has applied for widow’s benefits on M2~’s record.
A. Federal Law and Programmatic Guidance
The Agency will determine whether a claimant is the insured’s widow or widower by
looking to the laws of the state where the insured was domiciled when he or she died.
42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. In this case, at the time of death,
M2~, the insured, was domiciled in Washington State. Therefore, we look to the law
of Washington State to determine whether M~ can be considered M2~’s spouse for purposes
of determining entitlement to widow’s benefits under the Act.
In addition, in order to be entitled to widow’s benefits, a person must, among other
things, be either a legal, putative, or deemed spouse for not less than 9 months,
unless an exception applies. 42 U.S.C. § 416(c); 20 C.F.R. § 404.335; POMS RS 00207.001A.1.a.1-2. As a result, we must determine whether the marriage in this case satisfied the
duration of marriage requirement.
B. Washington State Law
The State of Washington authorized domestic partnerships beginning July 22, 2007.
2007 Wash. Legis. Serv. Ch. 156 (S.B. 5336). The law made domestic partners eligible
for a number of the benefits of marriage, including the right to inherit property
from a partner dying intestate. Id. at Sec. 27. It amended the existing law to provide, in pertinent part, that a share
of the net estate of a person dying intestate would be distributed to the “surviving
spouse or state registered domestic partner.” Id. (emphasis in original). Accordingly, Program Operations Manual System (POMS) GN 00210.004.D reflects that Washington established the non-marital legal relationship of registered
domestic partnership, with qualifying inheritance rights, effective July 22, 2007.
In 2012, the Washington State legislature passed a law legalizing same-sex marriages.
2012 Wash. Legis. Serv. Ch. 3 (E.S.S.B. 6239). Under the new law, same-sex partners
in a state registered domestic partnership could be licensed and enter a marriage,
so long as they were otherwise eligible to marry. RCW § 26.60.100(1). The statute
further specifies that “[f]or purposes of determining the legal rights and responsibilities
involving individuals who had previously had a state registered domestic partnership
and have been issued a marriage license or are deemed married under the provisions
of this section, the date of the original state registered domestic partnership is the legal date of
the marriage. Nothing in this subsection prohibits a different date from being included on the
marriage license.” RCW § 26.60.100(4) (emphasis added).
M~ and M2~ were legally married in the State of Washington, where M2~ was domiciled
at the time of her death. Their marriage license is dated February XX, 2013. However,
under Washington State law, the legal date of their marriage is the date of the original
state registered domestic partnership. RCW § 26.60.100(4). Accordingly, although M~
and M2~’s marriage certificate reflects a date of February XX, 2013, the legal date
of M~ and M2~’s marriage is July XX, 2012, the date of their registered domestic partnership.
Because that date, July XX, 2012, is the date of marriage pursuant to Washington State
law, M~ and M2~ were legally married for over one year at the time of M2~’s death
on September 22, 2013. As a result, M~ and M2~’s marriage satisfies the spousal and
durational requirements for eligibility for widow’s benefits.
It is our opinion that M~ and M2~, a same-sex couple, were married for purposes of
determining entitlement widow’s benefits under the Act and their marriage satisfies
the nine-month duration of marriage requirement set out in the Act.