For a claimant to be entitled to mother’s or father benefits as a surviving spouse
with an in-care child, the claimant must meet all of the following:
• be the widow(er) of a NH who died fully or currently insured;
• not be married;
• have filed an application for mother’s/father’s insurance benefits;
• not be entitled to widow(er)’s insurance benefits;
• not be entitled to retirement insurance benefits (RIB) equal to or exceeding the
amount of the unadjusted mother’s/father’s benefit; and
• have in-care child of the deceased NH entitled to a child’s insurance benefit.
2 U.S.C. § 402(g)(1). Therefore, a claimant first must establish that she is the NH’s
widow in accordance with the section 402(e)(1) of the Act. 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.[1] 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 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 such insured 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 in a Valid Marriage.
Under the law of the District of Columbia, the validity of a marriage is determined
by the law of the jurisdiction where the individual entered the marriage.[2] 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, the claimant and the NH lived together, but there is no indication that they
entered into a ceremonial marriage. Therefore, the claimant is not entitled to Title
II widow’s benefits on the record of the NH, based on a valid marriage to the NH.
The Claimant Does Not Have the Same Status as a Widow of the NH
under the Intestacy Law of Nicaragua.
Since the claimant was not married to the NH, the agency will 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.
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 Nicaragua at the time of death[3]. Nicaragua is not a common law country, and the concept of “common law marriage”
is not recognized. Instead, Nicaragua recognizes the concept of stable de facto unions.[4] Nicaragua’s Family Code implements article 72 of the Constitution, which sets out
stable de facto unions.[5] The Code states that stable de facto unions are formed pursuant to a voluntary agreement
between a man and a woman who, without impediment to marry, live together in a free,
stable, open, and exclusive manner for at least two consecutive years.[6] Stable de facto unions may be created by a voluntary declaration by the parties,
or in certain circumstances, by the court.[7] Once established, de facto unions convey the same inheritance rights as marriage.[8]
A voluntary declaration of a stable de facto union may be made before a notary public
authorized to perform marriages. This authorized, public document is required for
a stable de facto union.[9] At the time of declaration, the individuals must declare that they have lived in
an exclusive and stable manner and they have documents that demonstrate that they
have the legal capacity to carry out such an act.[10] Additionally, an individual may unilaterally request that the appropriate court recognize
the existence of a de facto union where the other party fails to consent or has died.
If one of the parties is dead, the fact that cohabitation existed at the time of death
must be demonstrated. A court decision declaring the existence of a de facto union
must specify the dates on which the stable de facto union commenced and terminated.[11] Such decisions must be registered in the Civil Registry of Persons.[12] This court decision has the legal effect of a marriage from the date on which the
stable de facto union commenced.
In the instant case, the NH and claimant lived together beginning in August 19XX and
had two children together. The NH passed away in September 20XX. The evidence submitted
confirms that the NH and the claimant lived together as a couple. Moreover, the claimant
submitted a notarized voluntary declaration dated October XX, 20XX. However, because
the claimant was unilaterally requesting recognition by way of a voluntary declaration,
a court decision was required pursuant to Nicaragua’s Family Code. There is no indication
that a court issued a decision declaring the existence of a de facto union. Additionally,
there is no evidence showing that the claimant and the NH made a voluntary declaration
of a stable de facto union before a notary public authorized to perform marriages
during the life of the NH. Absent evidence of a recognized stable de facto union,
the claimant cannot inherit as a spouse and, therefore, does not have the same status
as a widow of the NH for purposes of determining entitlement.
[1]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.
[2] The only exception is when the marriage is in violation of strong public policy of
the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942). The recognition of heterosexual unions performed
in other jurisdictions does not appear to violate a strong public policy of the District.
[3]While the NH passed away in Florida, evidence suggests that he was in Florida temporarily
to receive medical care.
[4]LL File No. 2017-015150 (July 2017) (Law Library of Congress Report), at 1.
[5] LL File No. 2017-015150 (July 2017) (Law Library of Congress Report), at 1 citing
CONSTITUCIÓN POLÍTICA DE LA REPÚBLICA DE NICARAGUA art. 72, LA GACETA [L.G.], Jan.
9, 1987, available
as amended at
http://www.asamblea.gob.ni/constitucion/Libro_Constitucion.pdf, archived at https://perma.cc/8RVE- KMUU, English translation available in HeinOnline World Constitutions Illustrated
database (by subscription).
[6] LL File No. 2017-015150 (July 2017) (Law Library of Congress Report), at 1-2.
[7]LL File No. 2017-015150 (July 2017) (Law Library of Congress Report), at 2 citing
CONSTITUCIÓN POLÍTICA DE LA REPÚBLICA DE NICARAGUA art. 84 and 85, LA GACETA [L.G.],
Jan. 9, 1987.
[8]LL File No. 2017-015150 (July 2017) (Law Library of Congress Report), at 2.
[9] LL File No. 2017-015150 (July 2017) (Law Library of Congress Report), at 2.
[10] Id. citing CONSTITUCIÓN POLÍTICA DE LA REPÚBLICA DE NICARAGUA art. 84, LA GACETA
[L.G.], Jan. 9, 1987.
[11]LL File No. 2017-015150 (July 2017) (Law Library of Congress Report), at 2.
[12]Id. citing CONSTITUCIÓN POLÍTICA DE LA REPÚBLICA DE NICARAGUA art. 85 and 86, LA GACETA
[L.G.], Jan. 9, 1987