QUESTION
Whether I~ (Claimant) and number holder (NH) C~, were validly married, or may be deemed
married, for the purpose of determining Claimant’s entitlement to Title II benefits
under the Social Security Act (Act).
ANSWER
We believe that even though Claimant and NH were not validly married under Title II
of the Act, the agency can deem the couple as married for the purpose of Title II
benefits. The evidence provided shows that Claimant and NH had a stable union under
the laws of Brazil, and as such, Claimant has the same status as a widow of the NH
for purposes of intestate inheritance. Accordingly, the agency could find that Claimant
is NH’s widow for the purpose of Title II benefits under the Act.
BACKGROUND
Claimant alleges she and NH established a common- law marriage in 1997 in Brazil.
NH and Claimant did not participate in a marriage ceremony. NH’s niece and son, and
Claimant’s son submitted statements attesting NH and Claimant lived together continuously
for eighteen years and were generally known as husband and wife. Claimant’s son stated
NH raised him and they lived together as a family. Claimant submitted documents showing
NH adopted her son in Brazil in October 2009. The adoption record stated NH had been
living in a stable union with Claimant for thirteen years. The couple had a daughter
who died shortly after birth in 1998. Claimant and NH also shared a personal checking
account. NH and Claimant resided in Brazil together at his death on June XX, 2015.
Claimant filed for widow’s insurance benefits and a lump sum death payment (LSDP)
on or about June XX, 2019. She later withdrew, but resubmitted her application on
or about September XX, 2021.
DISCUSSION
Under Title II of the Act, a claimant may be entitled to widow(er)’s insurance benefits
on a deceased insured individual’s account if, among other things,[1] the claimant is the widow(er) of the insured individual and their marriage lasted
at least nine months as of the day before the insured individual died. See 42 U.S.C.
§§ 402(e)(1), (f)(1), 416(a)(2), (c), (g); 20 C.F.R. § 404.335; Program Operations
Manual System (POMS) GN 00305.100. Under Title II of the Act, the LSDP, which is a one-time payment of $255, may be
paid to a deceased insured individual’s widow(er) who was living in the same household
with the insured at the time of his death. [2] See 42 U.S.C. § 402(i); 20 C.F.R. §§ 404.390, 404.391. As pertinent here, the Act
provides two methods for a claimant to show he or she is the widow(er) of an insured
who was domiciled outside the United States.[3] First, a claimant is the widow(er) of such insured if the courts of the District
of Columbia would find that the claimant was validly married to the insured at the
time the insured died. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, if
the claimant was not validly married to NH at the time the NH died, the claimant will
be deemed to be the insured’s widow(er) 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(er) 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.
In this case, the NH was domiciled in Brazil when he died. Therefore, the claimant’s
status will be evaluated under the laws of the District of Columbia.
Claimant was not Validly Married to the NH under the laws
of Brazil[4]
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. 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).
In Brazil, a civil marriage occurs when the couple declares before a judge their free
will to establish a conjugal bond, and the judge declares them married.[5] A religious marriage that meets the legal requirements for a valid civil marriage
has the same legal effects as a civil marriage, as long as it is registered with the
competent civil registrar’s office.[6]
Here, Claimant and NH lived as husband and wife, but the couple never participated
in a marriage ceremony and Claimant did not submit proof they registered their marriage
with a civil registrar’s office. Therefore, the District of Columbia would not recognize
the couple as validly married, and Claimant is not entitled to Title II widow’s benefits
or the LSDP on the record of the NH based on a valid marriage.
Claimant Has the Same Status as a Wife of the NH under the
Intestacy Law of Brazil
Because Claimant was not validly married to NH, the agency will deem the couple to
have been married 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 spouse of the NH with respect to the taking of such property,
if the NH were to die. See 42 U.S.C § 416(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 Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)).
Here, NH was domiciled in Brazil at the time of his death on June XX, 2015. Accordingly,
to determine whether Claimant would have the requisite status with respect to inheritance
of the NH’s intestate property, we apply the law of Brazil. Brazil recognizes stable
unions between a man and woman who are not formally married as a family entity.[7] On May 10, 2017, the Brazilian Federal Supreme Court held that the distinction in
succession schemes between married spouses and partners in a stable union provided
in Brazil’s Civil Code was unconstitutional.[8] The Court held that the succession framework applicable to spouses of a civil marriage
must be applied both in cases of marriage and in stable unions.[9] Thus, for purposes of Brazilian inheritance rights, stable unions and marriages have
the same legal value, providing partners in stable unions the same rights as those
of married persons. [10]
A stable union can be evidenced by public, continuous, and lasting cohabitation that
is established with the objective of constituting a family.[11] A joint bank account can also be used to prove a stable union.[12] Here, NH and Claimant met the definition of a stable union. Claimant introduced evidence
that she lived with NH continuously in Brazil for eighteen years, NH adopted and helped
raise Claimant’s son, and the couple shared a bank account. The 2009 Brazil adoption
record also notes the couple were in a stable union for thirteen years. Therefore,
we believe under Brazilian law, Claimant would have the same inheritance rights as
she would if she were NH’s spouse through a civil marriage. Accordingly, we believe
Claimant’s inheritance rights would be recognized by the District of Columbia.
CONCLUSION
We believe Claimant’s relationship with the NH would be recognized as a valid stable
union and that Claimant has the same status as a spouse of the NH for intestate succession
purposes under the law of Brazil. Thus, we believe that courts of the District of
Columbia would find that the claimant has the same intestate succession rights as
a spouse. Accordingly, we believe that there is support for the agency to deem the
couple married for Title II purposes.
1