TN 11 (04-21)

PR 05630.016 Argentina

A. PR 21-021 Effect of a Cohabitation Union Under the Law of Argentina – DEATH CASE

Date: March 29, 2021

1. Syllabus

The number holder (NH) died in Argentina. It appears that the alleged basis for the marital relationship is a common law marriage. However, Argentina only recognizes a cohabitation union, which differs from a legal marriage. Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. Here, because the claimant and NH were not validly married under Argentine law, a District of Columbia court would not recognize the couple as validly married. The claimant and NH were not legally married; therefore, the agency cannot deem the claimant a widow for title II purposes.

2. Opinion

QUESTION PRESENTED

Whether the claimant is entitled to survivor’s benefits under Title II of the Social Security Act on the record of the deceased number holder (NH) based on alleged opposite-sex common law marriage?

ANSWER

The claimant’s relationship with the NH would not be recognized as a valid marriage. Further, while Argentina recognizes cohabitation unions (uniónes convivencial), such a union does not confer upon the surviving member of that union the same intestate succession rights as marriage confers upon a widow. Accordingly, even if the claimant can establish that she was in a cohabitation union with the NH, the agency cannot deem the claimant the NH’s widow for Title II purposes.[1]

BACKGROUND

The NH died in Argentina in December 2019. The claimant alleges that, prior to the NH’s death, she and the NH lived together in Argentina in a common law marriage. The claimant applied for widow’s benefits and was denied initially based on the precedent contained in POMS PR 05630.016.

ANALYSIS[2]

To be entitled to widow’s insurance benefits under the Act, a claimant must show, among other things, that she is the “widow” of an insured and that she was married to the insured for a period of nine months. 42 U.S.C. § 402(e)(1). As pertinent here, the Act provides two methods for a claimant to show she is the widow of an insured who was domiciled outside the United States.[3] First, a claimant is the widow of such insured if the courts of the District of Columbia would find that the claimant was validly married to the insured for at least nine months at the time the insured died. 42 U.S.C. §§ 416(c)(1), 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, if the claimant was not validly married to such insured for at least nine months at the time the insured died, the claimant will be deemed to be the insured’s widow if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a widow of the insured with respect to the taking of such property. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

The claimant and NH were not legally married.

Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946). Here, it appears that the alleged basis for the marital relationship is a common law marriage. As discussed below, however, Argentina only recognizes a cohabitation union, which differs from a legal marriage. Because the claimant and NH were not validly married under Argentine law, a District of Columbia court would not recognize the couple as validly married.

The claimant does not have the same status as a widow of the NH under the intestacy law of Argentina.

Because the claimant was not legally married to the NH, the agency can deem the claimant to be the NH’s widow if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, she has the “same status” as a widow of the NH with respect to the taking of such property. 42 U.S.C § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.[4]

Under District of Columbia law, the law of the decedent’s domicile determines intestate inheritance rights. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)).

Here, the NH was domiciled in Argentina at the time of his death. At issue is whether a cohabitation union between the claimant and NH, if established, would confer upon the claimant the same intestate succession rights that a widow would have.

Argentina began recognizing cohabitation unions effective August 1, 2015.[5] However, under Argentine law, “[p]artners of cohabitation unions do not have the right to inherit from an intestate partner.”[6] Rather, “[i]f one partner wants the other to inherit his or her assets, that partner must execute a will designating the other partner as a beneficiary.”[7] A surviving partner of a cohabitation union thus does not have the “same status” as a widow of the NH with respect to taking such property.[8] Accordingly, the agency cannot deem the partner in a cohabitation union a widow for the purposes of establishing entitlement to benefits under Title II of the Act.

CONCLUSION

The claimant and NH were not legally married. Additionally, even if the claimant and NH were in a cohabitation union, such a relationship would not confer upon the claimant the same intestate succession rights as a widow of the NH under the law of Argentina. Thus, the agency cannot deem the claimant a widow for title II purposes.

B. PR 12-025 Maria’s Entitlement to Wife’s Insurance Benefits Based on Her Relationship with Juan

DATE: December 5, 2011

1. SYLLABUS

Argentina does not recognize common-law marriage. Argentina only recognizes as valid civil marriages celebrated with a civil marriage ceremony.  The couple did not celebrate their relationship with a civil marriage ceremony, and their relationship is not a valid marriage under Argentine law.

2. OPINION

I. Issue

You asked whether Maria (the claimant) qualifies as Juan (the NH)’s wife for purposes of determining her entitlement to wife’s insurance benefits under the Social Security Act.

II. Opinion

The claimant does not qualify as the NH’s wife for purposes of determining her entitlement to wife’s insurance benefits.  The claimant was not validly married to the NH at the time she applied for benefits, nor does the claimant have the same status as a wife of the NH under intestacy law.  

III. Background

The claimant and the NH, both of whom reside in Argentina, allege that they entered into a common-law marriage in September 2009. Since that time, the claimant and the NH have lived together and have held themselves out to others as husband and wife. However, the claimant and the NH acknowledge that their relationship has not been celebrated with a civil marriage ceremony.  They stated that they plan to have a civil marriage ceremony in the future, but have not yet done so because they are waiting for “certificates . . to be legalized.” In November 2010, the claimant applied for wife’s insurance benefits on the NH’s earnings record. 

IV. Discussion

Under the Social Security Act, a claimant may be entitled to wife’s insurance benefits if she is the wife of an insured individual. See Social Security Act § 202(b)(1), 42 U.S.C. § 402(b)(1); 20 C.F.R. § 404.330(a). As pertinent here, the Act provides two means by which a claimant may qualify as the wife of an insured individual who is domiciled outside the United States.  First, a claimant is the wife of such individual if the courts of the District of Columbia would find that she was validly married to him at the time she applied for benefits. See Social Security Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.305.  Second, even if the claimant was not validly married to the insured individual at the time she applied for benefits, she will be deemed to be his wife if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, she would have the same status as a wife. See Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

A. The Claimant Was Not Validly Married to the NH

Under District of Columbia law, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Carr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946). Here, the claimant and the NH allege that they entered into a common-law marriage in Argentina.  Accordingly, we must determine whether their relationship constitutes a valid marriage under Argentine law. 

Argentina does not recognize common-law marriage. See C~ Civil arts. 172, 186.  Argentina recognizes as valid only civil marriages that are celebrated with a civil marriage ceremony before competent authorities of the Registry of Civil Status. Id. In this matter, the claimant and the NH acknowledge that their relationship has not been celebrated with a civil marriage ceremony.  Their relationship, therefore, does not constitute a valid marriage under Argentine law. Accordingly, the claimant cannot qualify as the NH’s wife on the basis that she was validly married to him at the time she applied for benefits.

B. The Claimant Does Not Have the Same Status As a Wife Under Intestacy Law         

Even if the claimant was not validly married to the NH, she will be deemed to be his wife if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, she would have the same status as a wife. See Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re G~’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). Here, since the NH was domiciled in Argentina, we must apply Argentine law to determine whether the claimant has the same status as a wife for purposes of inheriting the NH’s intestate property. 

Argentine law provides intestate inheritance rights for married couples only. See C~ Civil arts. 3570-76; see also Mirta, Concubinato: Cuestiones Patrimoniales, Personales y Previsionales 100 (Rosario, Editorial FAS, 1999); III-B Maria , D~ 514, n.2 (Buenos Aires, Rubinzal-Culzoni, 2009).  Argentine law does not provide such rights for cohabiting but unmarried couples. Id. 

In this matter, because the claimant’s relationship with the NH does not constitute a valid marriage under Argentine law, the claimant does not have the same status as a wife of the NH for purposes of intestate inheritance.  Indeed, as a cohabiting but unmarried partner of the NH, the claimant does not have any intestate inheritance rights under Argentine law. Thus, the claimant cannot qualify as the NH’s wife on the grounds that she has the same status as a wife of the NH under intestacy law. 

V. Conclusion

The claimant does not qualify as the NH’s wife for purposes of determining her entitlement to wife’s insurance benefits.  The claimant was not validly married to the NH at the time she applied for WIB, nor does the claimant have the same status as a wife of the NH under intestacy law.  


Footnotes:

[1]

Because the existence of a cohabitation union under Argentine law does not entitle the claimant to benefits on the earnings record of the NH, this opinion does not address the requirements of for establishing a cohabitation union under Argentine law.

[2]

Our discussion of the law of Argentina is based on information we received from the Law Library of Congress. See Graciela Rodriguez-Ferrand, Report for the Social Security Administration, Argentina: Nontraditional Unions, LL File No. 2020-019517 (October 2020) (Law Library of Congress Report).

[3]

In determining the claimant’s relationship as the insured’s spouse, the agency looks to the law of the State where the insured had a permanent home at the time the claimant applied for benefits. See 42 U.S.C. § 416(h)(1)(A)(i). If the insured was not domiciled in any State, the agency applies the law of the District of Columbia. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345; POMS GN 00210.006(B)(2).a.

[4]

Though the regulatory language is slightly different than the statutory language, it should not be interpreted to provide a more expansive definition of who can be deemed a spouse or widow(er) than the statute for two reasons. First, in 1978 the regulatory language closely tracked that of the statute, see 20 C.F.R. 404.1101(a) (1978). When SSA revised the regulation in 1979 with the language used today, it explained that its intent was merely to simplify and clarify the text, not to introduce a substantive change in the definition of who could be deemed a spouse or widow(er). 43 Fed. Reg. 52936 (1978). Second, if the regulation were interpreted to be more expansive than the statute, it would impermissibly conflict with the statute, and therefore be invalid. See FDA v. Brown and Williamson Tobacco Corp., 529 U.S. 120, 125 (2000) (“Regardless of how serious the problem an administrative agency seeks to address, however, it may not exercise its authority ‘in a manner that is inconsistent with the administrative structure that Congress enacted into law.’”); GHS Health Maint. Org., Inc. v. United States, 536 F.3d 1293, 1297 (Fed. Cir. 2008) (“When a regulation directly contradicts a statute, the regulation must yield.”).

[5]

Law Library of Congress Report, at 1 (citing Código Civil y Comercial de la Nación (CCCN), Boletín Oficial [B.O.] art. 7, archived at https://perma.cc/P4VX-A9AF).

[6]

Id. at 2.

[7]

Id.

[8]

Id. (citing Macarena Milagros Cuesta, Uniónes Convivenciales en el Nuevo Código Civil y Comercial de la Nación 27, Universidad Siglo Veintiuno, https://perma.cc/5FH4-NZ9X; Cintia Gisel Bonaventura, Las Uniónes Convivenciales y los Valores de Solidaridad Familiar, Tu Espacio Jurídico Revista Jurídica Online (July 16, 2020), https://tuespaciojuridico.com.ar/tudoctrina/2020/04/16/1-219).


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505630016
PR 05630.016 - Argentina - 04/23/2021
Batch run: 04/23/2021
Rev:04/23/2021