TN 10 (05-21)

PR 05820.030 Denmark

 

A. PR 21-028 Surviving Spouse’s Benefits- Recognition of a Valid Same-Sex Marriage in Denmark and Indiana

Date: May 4, 2021

1. Syllabus

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 of death.  In this case, although it is uncertain whether number holder (NH) was domiciled in Indiana or Denmark at the time of his death, we believe there is legal support for the agency to recognize that Claimant and NH transformed their domestic partnership into a valid marriage under Danish law. The Claimant would meet the relationship requirement under either Indiana or District of Columbia law since both states recognize foreign marriages, as long as the marriage was valid in the country it was entered into. Accordingly, we believe that the agency could reasonably find that the Claimant was the NH’s widow(er) for purposes of widow(er)’s insurance benefits and the LSDP.

2. Opinion

QUESTION

Can the agency recognize T~ (Claimant) to be the spouse of W~ (Number Holder or NH), based on their same-sex marriage entered into in Denmark, for purposes of entitlement to surviving spouse’s benefits and the lump sum death payment (LSDP)?

SHORT ANSWER

Yes. As discussed below, we believe there is legal support for the agency to recognize that Claimant and NH were validly married in Denmark. Thus, we believe there is support for the agency to find that Claimant is NH’s surviving spouse as of May XX, 1998, for Title II purposes.

SUMMARY OF EVIDENCE

The evidence includes a marriage certificate issued in Denmark. The marriage certificate states that Claimant and NH were married on May XX, 1998, in Gentofte Rådhus. It was signed by an official of the marriage authority of Gentofte Kommune, a municipality, on September XX, 2012. [1]

You indicated that the couple continued to live in Denmark until NH and Claimant arrived in the United States on July XX, 2014. Claimant’s U.S. permanent resident card shows that he established legal permanent residence in the United States on that date. On August X, 2014, NH died in Indianapolis, Indiana. NH’s death certificate listed an address in Thorntown, Indiana.

You indicated that Claimant returned to Europe after NH died, and that in June 2017, Claimant moved to Chicago, Illinois. Claimant filed an application for widower’s insurance benefits on NH’s account and the lump sum death payment in September 2018. In his application, Claimant stated that he and NH were married on May XX, 1998.

DISCUSSION

Social Security Law and Policy

Under Title II of the Social Security Act (Act), a claimant may be entitled to widow(er)’s insurance benefits on a deceased insured individual’s account if, among other things, the claimant is the widow(er) of the insured individual and their marriage lasted nine months 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. 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. See 42 U.S.C. § 402(i); 20 C.F.R. §§ 404.390, 404.391.

The agency considers a claimant to be an insured’s widow(er) if the courts of the State in which the insured resided at the time of death would find that the claimant and the insured were validly married at the time the insured 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’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.335(a), 404.344, 404.345. The agency recognizes “same-sex marriages . . . established in foreign jurisdictions as marriages for Title II” entitlement purposes. POMS GN 00210.006.A.1; see also POMS GN 00210.006.B (explaining the steps the agency takes to determine the validity of foreign same-sex marriages).

As pertinent here, 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 of death. See 42 U.S.C. § 416(h)(1)(A)(i). If the insured is 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. As explained in detail below, the current information is insufficient to determine whether NH intended to make Indiana his domicile. In any event, it is not necessary to determine whether NH was domiciled in Indiana or Denmark at the time of his death, because, as we will explain, Claimant would meet the relationship requirement under either Indiana or District of Columbia law since both states recognize foreign marriages, as long as the marriage was valid in the country it was entered into. Thus we will first examine the law of Denmark.

Validity of Marriage Established in Denmark

The agency obtained advice from the Library of Congress regarding the validity of same-sex marriage in Denmark in September 2018.[2] In Denmark, marriages are governed by the Marriage Act.[3] In addition, Denmark first allowed registered domestic partnerships in 1989 via the Act on Registered Domestic Partnerships.[4] Effective June 2012, Denmark amended the Marriage Act to allow marriage “between two persons of the opposite sex and between two persons of the same sex.”[5] This amendment repealed the Act on Registered Domestic Partnerships.[6] As a result, couples who previously registered for a same-sex domestic partnership may transform their partnership into a marriage.[7] Couples who do so receive a marriage certificate from the municipality.[8]

Here, Claimant submitted a marriage certificate from the marriage authority in Gentofte Kommune, a marriage municipality in Denmark. The marriage certificate includes two dates. The first date, listed under “Date of Marriage,” is May XX, 1998. Claimant stated in his application that he was married to NH on this date. However, while Denmark recognized same-sex domestic partnerships at that time, it did not recognize same-sex marriages until 2012. Because this date also appears on the 2012 marriage certificate, it appears likely that the date represents the time that NH and Claimant registered for a domestic partnership.

The second date, September XX, 2012, appears to represent the date NH and Claimant transformed their domestic partnership into a marriage. This date was several months after Denmark amended the Marriage Act to recognize same-sex marriage. As noted above, couples who transform a same-sex domestic partnership into a marriage receive a marriage certificate from the municipality. As the couple transformed their same-sex domestic partnership to a marriage and the government issued a Marriage Certificate listing May XX, 1998, as the “Date of Marriage,” we believe Denmark recognizes the couple’s marriage as valid from May XX, 1998 until NH’s death.

NH’s Domicile Is Uncertain but Ultimately Unnecessary to the Determination

The United States Supreme Court has held that domicile “is established by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989); see also State Election Bd. v. Bayh, 521 N.E.2d 1313, 1317 (Ind. 1988) (domicile is “the place where a person has his true, fixed, permanent home and principal establishment, and to which place he has, whenever he is absent, the intention of returning”). Consistent with the U.S. Supreme Court’s definition, the agency determines one’s domicile using the dual prongs of physical presence and intent. An individual’s domicile is the place where he has his “true, fixed, and permanent home to which he/she intends to return whenever away.” POMS GN 00305.001.B.2; see also 20 C.F.R. § 404.303 (“Permanent home means the true and fixed home (legal domicile) of a person” and is the place a person intends to return whenever he is absent). Everyone has a domicile and “can have only one at a time.” POMS GN 00305.001.B.2. To change domicile, a person must intend to make a home in the new place permanently or for an indefinite period and be physically present in the new place while having that intent. POMS GN 00305.001.A.2.c.; see also Bayh, 521 N.E.2d at 1317 (“A change of domicile requires an actual moving with an intent to go to a given place and remain there.”).

The current information is insufficient to determine whether NH intended to make Indiana his domicile. NH and Claimant lived in Denmark from at least 1998 until they came to Indiana on July XX, 2014. Claimant established legal residence in the United States on that date. It is unknown why NH came to Indiana or whether he intended to stay in the State. NH’s death certificate listed an Indiana address as a mailing address. However, Claimant returned to Europe after NH’s death on August X, 2014. Claimant later moved to Chicago, Illinois in June 2017. In any event, it is not necessary to determine whether NH was domiciled in Indiana or Denmark at the time of his death, because Claimant would meet the relationship requirement under either Indiana or District of Columbia law.

A. Indiana Law

At the time of NH’s death on August X, 2014, Indiana law prohibited same-sex marriage: “A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.” Ind. Code § 31-11-1-1(b) (2014). However, this provision was held unconstitutional and Indiana has permitted same-sex marriage since October 2014. See Baskin v. Bogan, 12 F. Supp. 3d 1144, 1162 (S.D. Ind. 2014), aff’d, 766 F.3d 648 (7th Cir. 2014), cert. denied, 135 S. Ct. 316 (2014). In addition, in June 2015, the United States Supreme Court held that same-sex couples may exercise the fundamental right to marry in all States, and “that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” See Obergefell v. Hodges, 135 S. Ct. 2584, 2607-08 (2015).

In Indiana, “the general rule of law is that a marriage valid where it is performed is valid everywhere.” McPeek v. McCardle, 888 N.E.2d 171, 174 (Ind. 2008). Here, it appears that NH and Claimant transformed their domestic partnership into a valid marriage under Danish law on September XX, 2012. Thus, if NH was domiciled in Indiana at the time of his death, we believe that an Indiana court would recognize his Danish marriage to Claimant as valid at the time he died. Accordingly, we believe the evidence would be sufficient to establish that Claimant is NH’s widower for Title II purposes. 42 U.S.C. § 416(h)(1)(A)(i).

B. District of Columbia Law

Alternatively, if NH did not establish legal domicile in Indiana before his death, then he remained domiciled in Denmark. The agency applies District of Columbia (D.C.) law when the insured individual was domiciled outside the United States. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345.

Since 2010, D.C. has recognized same-sex marriage and applied the rights and responsibilities relating to marital or familial relationships to same-sex marriages. See D.C. Code § 46-401. Additionally, since 2009, D.C. has recognized a marriage “legally entered into in another jurisdiction between 2 persons of the same sex that is recognized as valid in that jurisdiction,” so long as the marriage is not expressly prohibited by a narrow set of exceptions or deemed illegal. D.C. Code § 46-405.01.

As noted above, it appears that NH and Claimant transformed their domestic partnership into a valid marriage under Danish law. There is no indication that their marriage was prohibited or deemed illegal under D.C. law. See D.C. Code §§ 46-401.01-46.405. Thus, if NH was domiciled in Denmark at the time of his death, we believe that a D.C. court would recognize his Danish marriage to Claimant as valid at the time of his death. Accordingly, we believe the evidence would be sufficient to establish that Claimant is NH’s widower for Title II purposes. 42 U.S.C. § 416(h)(1)(A)(i).

CONCLUSION

Although it is uncertain whether NH was domiciled in Indiana or Denmark at the time of his death, for the reasons discussed above, we believe that the D. C. and Indiana courts would find that Claimant has proven by clear and convincing evidence that he was validly married to the NH under D.C. or Indiana law from May XX, 1998 until the NH’s death on August X, 2014. This marriage meets the Act’s nine-month marriage duration requirement for widow(er)’s benefits. Further, the evidence shows that Claimant was living in the same household as NH at the time of his death. Thus, we believe that the agency could reasonably find that Claimant was NH’s widow(er) for purposes of widow(er)’s insurance benefits and the LSDP.


Footnotes:

[1]

The preferred proof of a ceremonial marriage performed in a foreign country is a church or civil record issued pursuant to the foreign law which shows the claimant and the NH as married. See POMS GN 00305.020.A.4. The marriage document submitted to OGC appears to satisfy this evidentiary requirement.

[2]

Our discussion of Danish law is based on information we received from the Law Library of Congress. See Erin Hofverberg, Report for the U.S. Social Security Administration, Validity of Same-Sex Marriage in Denmark, LL File No. 2018-016803 (September 2018) (Law Library of Congress Report).

[3]

See id., at 1 (citing Lov om ægteskabs indgåelse og opløsning [Act on Entering into and Dissolving Marriage]; Ægteskabsloven [Marriage Act] (LBK nr 54 af 23/01/2018), available at https://www.retsinformation.dk/Forms/R0710.aspx?id=197040, archived at https://perma.cc/ZZ82-4G9Q).

[4]

See id. (citing Lov om registreret partnerskab [Act on Registered Domestic Partnerships] (LOV nr 372 af 07/06/1989), available at https://www.retsinformation.dk/Forms/R0710.aspx?id=59419, archived at https://perma.cc/X5SJ-T7NG).

[5]

See id. (citing Lov om ændring af lov om ægteskabs indgåelse og opløsning, lov om ægteskabets retsvirkninger og retsplejeloven og om ophævelse af lov om registreret partnerskab [Act on Amendments to the Act on Entering into and Dissolving Marriage and the Repeal of the Act on Registered Domestic Partnerships], § 1 (LOV nr 532 af 12/06/2012), available at https://www.retsinformation.dk/Forms/R0710.aspx?id=142282, archived at https://perma.cc/NVZ7-PQJM).

[6]

See id. (citing Act on Amendments to the Act on Entering into and Dissolving Marriage and the Repeal of the Act on Registered Domestic Partnerships, supra note 6).

[7]

See id. (citing Act on Amendments to the Act on Entering into and Dissolving Marriage and the Repeal of the Act on Registered Domestic Partnerships, supra note 6, § 5).

[8]

See Law Library of Congress Report, at 1-2 (citing § 23 Bekendtgørelse om indgåelse af ægteskab (BEK nr 1493 af 11/12/2017), available at https://www.retsinformation.dk/Forms/R0710.aspx?id=196441, archived at https://perma.cc/545Y-TUZ9).


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http://policy.ssa.gov/poms.nsf/lnx/1505820030
PR 05820.030 - Denmark - 05/20/2021
Batch run: 05/20/2021
Rev:05/20/2021