QUESTION PRESENTED
L~ (Claimant) filed an application for widow(er)’s insurance benefits and the lump
sum death payment (LSDP) under Title II of the Social Security Act (Act) on the record
of the deceased number holder (NH) F~, who died on June XX, 2023, domiciled in New
Jersey. You advised that the Claimant alleges that she and the NH entered into a domestic
partnership in New Jersey on November XX, 2018. You asked whether the Claimant and
the NH had a valid opposite-sex domestic partnership under New Jersey law to determine
the Claimant’s marital status for Title II benefits on the NH’s record.
ANSWER
We believe New Jersey courts would find that as of the NH’s death on June XX, 2023,
the Claimant could inherit a spouse’s share under New Jersey intestate succession
law based on their valid opposite-sex New Jersey domestic partnership entered into
on November XX, 2018, as evidenced by a New Jersey Certificate of Domestic Partnership.
Thus, there is legal support for the agency to find that the Claimant is the NH’s
widow(er) under the Act for Title II benefit purposes. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345.
BACKGROUND
It is our understanding that the NH died on June XX, 2023, domiciled in New Jersey.
You advised that on September XX, 2023, the Claimant filed an application for widow(er)’s
insurance benefits and the LSDP on the NH’s record alleging that she entered into
a domestic partnership with the NH on November XX, 2018, in Ridgewood, New Jersey.
The NH, born March XX, 1937, was 81 years old when they entered into the domestic
partnership. The Claimant, born February XX, 1954, was 64 years old when they entered
into the domestic partnership. The Claimant provided the NH’s death certificate and
their domestic partnership certificate.
The NH’s New Jersey death certificate reflects that the NH and the Claimant were living
at the same address in Ridgewood, New Jersey at the time of his death. The Claimant
was the informant and she identified herself as his spouse.
A State of New Jersey “Certificate of Domestic Partnership” identifies the NH and
the Claimant as domestic partners; shows that they registered their domestic partnership
on November XX, 2018 in Ridgewood, New Jersey; and shows that the certificate was
issued by the Registrar for the Ridgewood, New Jersey Health Department. The Certificate
of Domestic Partnership is signed by the State Registrar for the New Jersey Office
of Vital Statistics and Registry. The Certificate of Domestic Partnership states:
“The two individuals listed hereon are members of a registered Domestic Partnership
recognized by the State of New Jersey. Domestic Partners are entitled to all rights,
privileges and responsibilities accorded to domestic partners under New Jersey law.”
ANALYSIS
A. Federal Law: Entitlement to Widow(er)’s Insurance Benefits and the LSDP as a
Widow(er)[1]
Under Title II of the Act, a claimant may be entitled to widow(er)’s insurance benefits
on a deceased insured individual’s record if, among other requirements, the claimant
is the widow(er) of the insured individual and their marriage relationship lasted
at least nine months before the insured individual died.[2] See 42 U.S.C. §§ 402(e), (f), 416(a)(2), (c), (g); 20 C.F.R. § 404.335. To be entitled
to the LSDP under Title II of the Act, a claimant must establish that the claimant
is the widow(er) of an individual who died fully or currently insured, and the claimant
was living in the same household as the insured at the time of the insured individual’s
death.[3] See 42 U.S.C. § 402(i); 20 C.F.R. §§ 404.390, 404.391.
The agency will find a claimant to be an insured individual’s widow(er) if the courts
of the State in which the insured individual was domiciled at the time of death would
find that the claimant and the insured individual were validly married at the time
the insured individual died, or if, under application of that State’s intestate succession
laws, the claimant would be able to inherit a spouse’s share of the insured individual’s
personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Following
section 216(h)(1)(A)(ii) of the Act, the agency will treat a couple’s non-marital
legal relationship (such as a civil union, domestic partnership, or reciprocal beneficiary
relationship) as a marital relationship and consider a claimant to be the insured
individual’s widow(er) for Title II benefit purposes if the State of the insured individual’s
domicile would allow the claimant to inherit a spouse’s share of the insured individual’s
personal property if the individual died without leaving a will. See 42 U.S.C. § 416(h)(1)(A)(ii);
20 C.F.R. § 404.345; POMS GN 00305.005A.
It is our understanding that the NH was domiciled in New Jersey at the time of death
on June XX, 2023. Therefore, we look to New Jersey law to determine if the Claimant
is the NH’s widow(er).
B. New Jersey State Law: The Right to Inherit as a Spouse’s Share under New Jersey
Intestate Succession Law based on a Valid New Jersey Domestic Partnership
1. New Jersey Domestic Partnership Law: After February 19, 2007, New Jersey law
authorizes both same-sex and opposite-sex domestic partnerships for persons age 62
years and older.
A valid New Jersey domestic partnership established pursuant to the New Jersey Domestic
Partnership
Act conveys the right to inherit a spouse’s share under New Jersey intestate succession
law.
The Claimant has alleged and presented evidence of a New Jersey opposite-sex domestic
partnership with the NH entered into on November XX, 2018. New Jersey statutory law
authorizes both domestic partnerships and civil unions.[4] New Jersey’s Domestic Partnership Act (DPA) took effect on July 10, 2004, formally
recognizing domestic partnerships under New Jersey law and accorded certain rights
to registered domestic partners. See N.J. Stat. Ann. §§ 26:8A-1 – 26:8A-13. In December
2006, the New Jersey Legislature enacted the Civil Union Act, which took effect February
19, 2007, and established civil unions that, unlike domestic partnerships, afforded
parties to the union all the same rights and benefits of marriage. See N.J. Stat.
Ann. §§ 37:1-28—37:1-35. With the Civil Union Act, effective February 19, 2007, the
Legislature provided that no domestic partnerships would be registered under the DPA
except where the two parties are each 62 years of age or older. See N.J. Stat. Ann.
§ 26:8A-4.1; see also Department of Health | Vital Statistics | Frequently Asked Questions
(nj.gov) (last visited January 11, 2024) (noting, “[a]s of February 19, 2007, domestic
partnerships can only be established by couples 62 years of age or older, regardless
of whether they are a same-sex or opposite-sex couple.”). The Civil Union Act did
not alter the rights and responsibilities of registered domestic partnerships existing
prior to February 19, 2007, except that eligible domestic partners would be given
notice and opportunity to enter into a civil union, which would operate to terminate
their domestic partnership. See N.J. Stat. Ann. § 26:8A-4.1.
As the present claim involves a domestic partnership, not a civil union, we focus
on New Jersey’s domestic partnership law under the DPA. In order to establish a valid
domestic partnership under the DPA, two persons must meet the requirements of § 26:8A-4(b)
and must execute and file an affidavit of domestic partnership with the local registrar.
N.J. Stat. Ann. § 26:8A-4(a).
Section 26:8A-4(b) sets forth the following requirements:
(1) both persons have a common residence and are otherwise jointly responsible for
each other’s common welfare as evidenced by joint financial arrangements or joint
ownership of real or personal property, which shall be demonstrated by at least one
of the following: a joint deed, mortgage agreement or lease; a joint bank account;
designation of one of the persons as a primary beneficiary in the other person’s will;
designation of one of the persons as a primary beneficiary in the other person’s life
insurance policy or retirement plan; or joint ownership of a motor vehicle;
(2) both persons agree to be jointly responsible for each other’s basic living expenses
during the domestic partnership;
(3) neither person 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 each 62 years of age or older;
(6) both persons have chosen to share each other’s lives in a committed relationship
of mutual caring;
(7) both persons file jointly an affidavit of domestic partnership; and
(8) neither person has been a partner in a domestic partnership that was terminated
less than 180 days prior to the filing of the current affidavit of domestic partnership,
unless one of the partners died.
N.J. Stat. Ann. §§ 26:8A-4(b), 26:8A-4.1.
The local registrar shall receive and file the affidavit of domestic partnership and
immediately complete and issue a “Certificate of Domestic Partnership” with the domestic
partners’ relevant information and date that the domestic partnership was established.
N.J. Stat. Ann. § 26:8A-8(a), (b); see also N.J. Stat. Ann. § 26:8A-3 (defining the
content of a “certificate of domestic partnership”). The local registrar files a copy
of the Certificate of Domestic Partnership with the local registrar’s records and
the State registrar. N.J. Stat. Ann. §§ 26:8A-8(b), (c), 26:8A-9. The DPA provides
that “[a]ll persons in domestic partnerships should be entitled to certain rights
and benefits that are accorded to married couples under the laws of New Jersey.” N.J.
Stat. Ann. § 26:8A-2(d) (emphasis added). The DPA also states that “[t]he obligations
that two people have to each other as a result of creating a domestic partnership
shall be limited to the provisions of this act.” N.J. Stat. Ann. § 26:8A-6(a). Since
January 12, 2006, under New Jersey intestacy law, a surviving domestic partner will
inherit a spouse’s share of a decedent’s personal property if the decedent died without
leaving a will.[5] See N.J. Stat. Ann. § 3B:5-3 (setting out the intestate share of decedent’s “surviving
spouse or domestic partner”); Lewis v. Harris, 908 A.2d 196, 215 (N.J. 2006) (noting
New Jersey’s 2005 statutory amendments extending inheritance privileges when deceased
domestic partner dies without a will).
2. Application of the Law to the Claim: The Claimant and the NH, both over age 62
at the
time, entered into a valid domestic partnership pursuant to the New Jersey DPA, as
evidenced by a
New Jersey Certificate of Domestic Partnership.
Here, the Claimant has provided a copy of the State of New Jersey Certificate of Domestic
Partnership issued by the Registrar for the Ridgewood, New Jersey Health Department
showing that they registered their domestic partnership on November XX, 2018. Given
that they were issued a Certificate of Domestic Partnership, we can assume that the
local registrar found that the met the statutory requirements under the DPA for establishing
a domestic partnership and the affidavit requirement. See N.J. Stat. Ann. §§ 26:8A-4,
26:8A-4.1. Importantly, the NH, born March XX, 1937, was 81 years old when they entered
into the domestic partnership in 2018. The Claimant, born February XX, 1954, was 64
years old when they entered into the domestic partnership in 2018. Thus, they met
the requirement that after February 19, 2007, both partners must be age 62 or older
to enter into a domestic partnership. See N.J. Stat. Ann. § 26:8A-4.1. The Certificate
of Domestic Partnership appears to comply with the law as it identifies the full names
for the NH and the Claimant as the domestic partners; shows that they registered their
domestic partnership on November XX, 2018 in Ridgewood, New Jersey; and shows that
the certificate was issued by the Registrar for the Ridgewood, New Jersey Health Department
and signed by the State Registrar for the New Jersey Office of Vital Statistics and
Registry. See N.J. Stat. Ann. §§ 26:8A-3, 26:8A-8, 26:8A:9. Further, the Certificate
of Domestic Partnership states: “The two individuals listed hereon are members of
a registered Domestic Partnership recognized by the State of New Jersey. Domestic
Partners are entitled to all rights, privileges and responsibilities accorded to domestic
partners under New Jersey law.” See N.J. Stat. Ann. § 26:8A-3. Thus, with this Certificate
of Domestic Partnership, the Claimant has provided evidence that she and the NH entered
into a domestic partnership in accordance with the New Jersey DPA. There is no information
indicating that their domestic partnership terminated before the NH’s death on June
XX, 2023. As detailed above, as the Claimant is the NH’s surviving domestic partner
at the time of his death, she is entitled to intestate inheritance of a spouse’s share
from the NH under New Jersey intestate succession law. See N.J. Stat. Ann. § 3B:5-3
(intestate share of decedent’s surviving spouse or domestic partner), § 26:8A-2(d)
(legislative findings and declarations as to the rights of domestic partnerships).
In summary, we believe New Jersey courts would find that the Claimant could inherit
a spouse’s share from the NH as a surviving domestic partner under New Jersey intestate
succession law based on their valid New Jersey opposite-sex domestic partnership,
as evidenced by the Certificate of Domestic Partnership. See 42 U.S.C. § 416(h)(1)(A)(ii);
POMS PR 05845.033 New Jersey, A. PR 19-014 Entitlement to Surviving Domestic Partner’s Benefit on the
Account of Number Holder – Validity under New Jersey Law (Oct. 23, 2018) (advising
that the New Jersey domestic partnership was validly entered into in November 2008
and conferred intestacy rights under New Jersey law).
CONCLUSION
We believe New Jersey courts would find that as of the NH’s death on June XX, 2023,
the Claimant could inherit a spouse’s share under New Jersey intestate succession
law based on their valid opposite-sex New Jersey domestic partnership entered into
on November XX, 2018, as evidenced by a New Jersey Certificate of Domestic Partnership.
Thus, there is legal support for the agency to find that the Claimant is the NH’s
widow(er) under the Act for Title II benefit purposes. See 42 U.S.C. § 416(h)(1)(A);
20 C.F.R. § 404.345.