TN 13 (12-21)

PR 05630.030 Brazil

 

A. PR 21-073 Brazilian Common Law Marriage

Date: November 29, 2021

1. Syllabus

The number holder (NH) was domiciled in Brazil when he died; therefore, the Claimant’s status will be evaluated under the laws of the District of Columbia. The Claimant alleged she and the NH established a common- law marriage in 1997 in Brazil. The NH and Claimant did not participate in a marriage ceremony. The evidence provided shows that the Claimant and NH had a stable union under the laws of Brazil. We believe the Claimant’s relationship with the NH would be recognized as a valid stable union and the 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 and find that the Claimant is NH’s widow for the purpose of Title II benefits under the Act.

2. Opinion

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

 


Footnotes:

[1]

Claimant must satisfy other criteria for widow(er)’s benefits and the LSDP that are outside the scope of this legal opinion request, which concerns only their marital relationship. See 42 U.S.C. § 402(e), (i), § 416(c); 20 C.F.R. §§ 404.335, 404.390, 404.391.

 

[2]

“Living in the same household” means that the claimant and the insured individual “customarily lived together as husband and wife in the same residence.” 20 C.F.R. § 404.347; see also POMS RS 00210.035A.3 (the couple “must have shared a temporary or permanent residence for at least part of a day following the beginning of the marital relationship”). If the claimant cannot meet the living-in-the-same-household requirement, the claimant must meet the nine-month marriage duration requirement for widow(er)’s benefits or another alternative to be entitled to the LSDP. See 20 C.F.R. §§ 404.390 - 404.392; POMS RS 00210.001C.

 

[3]

In determining the claimant’s relationship as the insured’s spouse, the agency looks to the law of the state where the insured was domiciled at the time of the insured’s death. See 42 U.S.C. § 416(h)(1)(A)(i). If the insured was not domiciled in any state, as here, 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 .

[4]

Our discussion of the law of Brazil is based on information we received from the Library of Congress. See LL File No. 2022-020719 (November 2021) (Law Library of Congress Report).

[5]

LL File No. 2022-020719 at 2, citing Article 1,514 of Brazil’s Civil Code.

[6]

LL File No. 2022-020719 at 2, citing Article 1,515 of Brazil’s Civil Code.

[7]

LL File No. 2022-020719 at 1, citing Article 226(§3) of the Brazilian Constitution and Article 1.723 of Brazil’s Civil Code.

[8]

LL File No. 2022-020719 at 4.

[9]

Id.

[10]

Id.

[11]

LL File No. 2022-020719 at 1, citing Article 1.723 of Brazil’s Civil Code.

[12]

LL File No. 2022-020719 at 2, citing Governo do Brasil, Como Comprovar o Vínculo de União Estável Entre o Requerente e o Brasileiro ou Imigrante Beneficiário de Autorização de Residência?, https://www.gov.br/pf/pt-br/assuntos/imigracao/duvidas-frequentes/autorizacao-de-residencia-e-registro-nacional-migratoriornm/como-comprovar-o-vinculo-de.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505630030
PR 05630.030 - Brazil - 12/10/2021
Batch run: 12/10/2021
Rev:12/10/2021