TN 48 (04-19)

PR 05005.018 Illinois

A. PR 19-042 Divorced Spousal Benefits-Opposite Sex Civil Union

Date: February 5, 2019

1. Syllabus

The Claimant filed for divorced spouses benefits. The Claimant alleged that she legally married in September 1977 and divorced in March 2001 in Illinois. In January 2017, the Claimant entered into a civil union in Illinois, but alleges she is not currently married. Neither the Act nor the regulations address which law governs the validity of the divorced wife’s remarriage to a third party. Here, we believe that the law of Illinois should be applied because the civil union occurred in Illinois, and the couple continues to live in that state. The Illinois Religious Freedom Protection and Civil Union Act (Civil Union Act) permits a civil union between two persons of either the same or opposite sex and it makes clear that a civil union is equivalent to a marriage under Illinois law. The Claimant provided a Certification of Civil Union issued by the state of Illinois showing that she entered into a civil union in January 2017. There is no evidence that the Claimant dissolved the civil union. Therefore, we consider Claimant “married” for purposes of entitlement to divorced spouse’s benefits on her former spouse’s earnings record.

2. Opinion

Question

You asked us to consider the effect of a divorced spouse’s opposite-sex civil union in Illinois on her entitlement to divorced spouse’s benefits on her former spouse’s earnings record.

Short Answer

For the reasons stated below, we believe that the opposite-sex civil union in Illinois constitutes a “marriage” for benefits purposes and renders the divorced spouse ineligible to receive benefits on her former spouse’s earnings record.

Background

D~ legally married P~ on September X, 1977, in C, Illinois. They divorced on March XX, 2001, in Illinois.

D~ subsequently entered into a civil union with L~ on January XX, 2017, in Waukegan, Illinois. The couple continues to live in Illinois.

D~ filed an application for divorced spouse’s benefits on P~ earnings record on August XX, 2018. On her application, she alleged that she was not currently married. You have asked whether the agency should consider D~, following her civil union, “married” for benefits purposes and therefore not entitled to divorced spouse’s benefits.

DISCUSSION

Under the Social Security Act (Act), a divorced wife may be entitled to benefits on the record of her former spouse if she meets certain requirements. 42 U.S.C. § 402(b). She must (A) file an application for wife’s insurance benefits; (B) have reached age 62; (C) not be married; and (D) not be entitled to old-age or disability benefits based on a primary insurance amount that is equal to or greater than the full wife’s benefit. Id.;see alsoid. § 416(d)(1) (defining “divorced wife” as a woman who was married to an individual for 10 years immediately before the divorce became final); 20 C.F.R. § 404.331 (also requiring a divorced wife to have been divorced from the insured for at least 2 years). The issue in this case is whether D~ is “not married,” as required by 42 U.S.C. § 402(b)(1)(C), in light of her civil union with L~ after her divorce from P~.

We look to state law to determine whether a divorced wife was validly married to her former spouse. 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.331(a)(1), 404.345 . The validity of their marriage is determined by applying the law of the state in which the former spouse was domiciled. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.331(a)(1), 404.345. However, neither the Act nor the regulations address which law governs the validity of the divorced wife’s remarriage to a third party. Here, we believe that the law of Illinois should be applied because the civil union between D~ and L~ occurred in Illinois, and they continue to live in that state.

The Illinois Religious Freedom Protection and Civil Union Act (Civil Union Act), which went into effect in June 2011, permits a civil union between two persons of either the same or opposite sex. 750 Ill. Comp. Stat. 75/1. The Civil Union Act makes clear that a civil union is equivalent to a marriage under Illinois law. For example, it states that a “party to a civil union” means and is included in any definition or use of the terms “spouse,” “family,” and other terms that denote the spousal relationship. Id. 75/10. Moreover, the Civil Union Act specifically provides that “[a] party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses.” Id. 75/20.

Here, the evidence includes a Certification of Civil Union issued by L County, Illinois, showing that D~ and L~ entered into a civil union in January 2017. As discussed above, their civil union is equivalent to a marriage in Illinois. There is no evidence that D~ and L~ dissolved their civil union. Consequently, we consider D~ “married” for purposes of entitlement to divorced spouse’s benefits on her former spouse’s earnings record.

CONCLUSION

For the reasons discussed above, we conclude that D~ is currently “married” based on her civil union with L~, and thus she is not eligible to receive divorced wife’s benefits on P~ earnings record.


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http://policy.ssa.gov/poms.nsf/lnx/1505005018
PR 05005.018 - Illinois - 04/08/2019
Batch run: 04/08/2019
Rev:04/08/2019