TN 15 (11-18)

PR 05845.017 Indiana

A. PR 19-003 Whether California Same-Sex Domestic Partnership Would Be Recognized in Indiana

Date: September 6, 2018

1. Syllabus

The claimant and NH's same-sex domestic partnership that was established in California would be recognized by Indiana. While Indiana does not establish domestic partnerships, it would recognize the rights established via a validly entered domestic partnership in another State. A domestic partnership is treated as a marital relationship for Title II benefit purposes if it would allow the claimant to inherit a spouse’s share of the NH's personal property should the NH die without leaving a will.

2. Opinion

QUESTION PRESENTED

You asked whether C~ (claimant) is entitled to widower’s benefits and a lump-sum death payment (LSDP) on the record of the deceased number holder (NH), J~, based on a California domestic partnership. The NH was domiciled in Indiana when he died.

SHORT ANSWER

Yes. We believe that the Indiana courts would recognize a California domestic partnership as a relationship conveying the same inheritance rights as a “spouse.” Therefore, the agency could deem the couple as married for purposes of determining the claimant’s entitlement to benefits under Title II of the Social Security Act (Act)

SUMMARY OF EVIDENCE

The claimant and the NH entered into a domestic partnership in California on November XX, 2002. They lived in California until approximately June 2013, after which they moved to Indiana. The NH was domiciled in Indiana when he died on March XX, 2015. The claimant sought payment of surviving spouse benefits and a LDSP shortly thereafter.

APPLICABLE LAW

  • Federal Law

To be entitled to survivor’s benefits under Title II of the Act, a claimant must, among other things[1] , establish that she or he is the widow or widower of an individual who died fully insured. See 42 U.S.C. § 402(e),(f), 416(c)(1),(g)(1); 20 C.F.R. § 404.335. To be entitled to the LSDP under Title II of the Act, a claimant must establish that she or he is the widow or widower of an individual who died fully or currently insured, and was living in the same household as the insured at the time of his or her death. See 42 U.S.C. §§ 402(i), 416(c); 20 C.F.R. § 404.390. The agency will find a claimant to be the widow or widower of an insured individual if the courts of the State in which the insured individual resided at the time of his or her death would find that the claimant was validly married to the insured individual when the death occurred. 42 U.S.C. § 416(h)(1)(A)(i).

In addition, the agency uses the term “NMLR” to describe a variety of legal relationships for two individuals who are not considered married, but are provided with some or all of the rights that could be associated with a marriage. POMS GN 00210.004. The claimant and the number holder had an NMLR by virtue of registering a domestic partnership in California. Id. The agency will consider a claimant to be a NH’s spouse for benefit purposes when the state of the NH’s domicile would allow the claimant to inherit a spouse’s share of the NH’s personal property should the NH die without leaving a will. 42 U.S.C § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

  • California Law

California law allows two adults of the same sex to register a domestic partnership with the Secretary of State. Cal. Family Code § 297(a)-(b). Registered domestic partners have “the same rights, protections, and benefits . . . as are granted to and imposed upon spouses.” Cal. Family Code § 297.5(a). “A surviving registered domestic partner, following the death of the other partner, shall have the same rights, protections, and benefits . . . as are granted to and imposed on a widow or a widower.” Cal. Family Code § 297.5(c). Thus, a domestic partner inherits a spousal share when the other partner dies without a will. Cal. Probate Code § 6401 (intestate share of surviving spouse); POMS GN 00210.004(D).

  • Indiana Law

Indiana does not have a domestic partnership or civil union statute. POMS GN 00210.004(D). The Indiana Code once provided that “[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). 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).

ANALYSIS

As stated above, the agency will consider a claimant to be a NH’s spouse for benefit purposes when the courts of the state of the NH’s domicile would allow the claimant to inherit a spouse’s share of the NH’s personal property should the NH die without leaving a will. 42 U.S.C § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. Here, since the NH was domiciled in Indiana at the time of his death, we look to the laws of Indiana to determine the claimant’s relationship as the NH’s widower. And since the claimant and the NH entered into a domestic partnership in California, it is necessary to determine whether Indiana would allow the claimant to inherit as the NH’s spouse based on their California domestic partnership.

Based on our review of Indiana and California law, we believe it is likely that Indiana would recognize the inheritance rights of domestic partners conferred by California’s domestic partnership law, which includes the right to inherit a spousal share when a person dies intestate. See Cal. Family Code § 297.5(c); Cal. Probate Code § 6401. The Court of Appeals of Indiana, in a case involving the termination of a California registered domestic partnership (RDP), affirmed the trial court’s recognition of the California RDP on comity grounds. Gardenour v. Bondelie, 60 N.E.3d 1109, 1117 (Ind. Ct. App. 2016), transfer denied[2] , 83 N.E.3d 1218 (Ind. 2017) (citing Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App. 2002)). While the Gardenour court concerned the parental rights and obligations of registered domestic partners under Cal. Family Code § 297.5(d), the court applied its reasoning generally to all of the rights and obligations set forth in Cal. Family Code § 297.5. Gardenour, 60 N.E.3d at 1116-1117. Thus, the reasoning in Gardenour is readily applicable to a domestic partner’s right to inherit a spousal share under Cal. Family Code § 297.5(c).

The appellate court in Gardenour found no error in the trial court’s determination that the “couple’s RDP was the equivalent of marriage.” Id. at 1117; see also id. at 1118 (“California law makes clear a RDP is identical to marriage”). In so holding, the court rejected as “outdated” the claim that “recognition of a same-sex marriage is contrary to Indiana public policy,” given recent federal jurisprudence regarding same-sex marriage. Id. at 1117-18 (citing Obergefell v. Hodges , 135 S. Ct. 2584, 2608 (2015); Baskin , 766 F.3d at 657). Significantly, the appellate court noted that Ind. Code § 31-11-1-1(b)[3] , which stated a same-sex marriage is void in Indiana even if lawful in the state where it is celebrated, was struck down as unconstitutional. Gardenour, 60 N.E.3d at 1118. The appellate court also reasoned that a refusal to “recognize California RDPs as the equivalent of marriage” could “allow individuals to escape the obligations California imposes upon domestic partners.” Id.

In the instant case, we believe that Indiana courts would likely find, consistent with Gardenour, that the claimant’s California RDP was the equivalent of marriage and that it would recognize the RDP as a spousal relationship under the principle of comity. The Gardenour court explicitly held that recognizing same-sex marriage was not against Indiana public policy. Id. at 1117-18. Thus, we believe that Indiana would give effect to the California domestic partnership and allow the claimant to inherit a spousal share.

CONCLUSION

The claimant and the NH had a valid California domestic partnership which gave the claimant the same rights as a widower under California law. Given the appellate court’s holding in Gardenour, we believe the courts of Indiana likely would recognize the claimant’s California domestic partnership and give effect to the spousal inheritance rights afforded by California law to registered domestic partners. Thus we believe the agency could find Claimant to be the NH’s spouse for purposes of determining the claimant’s entitlement to benefits under Title II of the Act..


Footnotes:

[1]

The remaining requirements, found at 20 C.F.R. § 404.335, are not implicated in this matter.

[2]

The Indiana Supreme Court’s denial of a petition to transfer resembles the U.S. Supreme Court’s denial of a petition for a writ of certiorari. See Indiana Judicial Branch, Frequently Asked Questions About Appellate Court Decisions (“The most accurate description of the impact of a denial of a petition to transfer is that the Supreme Court ‘let stand’ or ‘left unchanged’ the decision of the Court of Appeals. The decision remains as a precedent of the Court of Appeals, not of the Supreme Court.”), available at https://www.in.gov/judiciary/2661.htm

[3]

The appellate court mistakenly referred to this section as Ind. Code § 31-1-1-1(b).


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505845017
PR 05845.017 - Indiana - 11/16/2018
Batch run: 11/16/2018
Rev:11/16/2018