QUESTION PRESENTED
Whether the domestic partnership of B~, the number holder (NH), and F~ (Claimant)
is considered a marital relationship for the purpose of determining entitlement to
widower’s benefits under Title II of the Social Security Act (the Act).
OPINION
It is our opinion that, because the domestic partnership conferred intestacy rights
under New Jersey law, the domestic partnership is considered a marital relationship
for the purpose of determining entitlement to widower’s benefits under Title II of
the Act.
BACKGROUND[6]
The Claimant and the NH entered into a valid domestic partnership on April XX, 1993,
in New York City. No actions were taken to terminate the domestic partnership prior
to the death of the NH on May XX, 2008 in New Jersey. Both the Claimant and the NH
were living in the same household in New Jersey at the time of the NH’s death.
LEGAL FRAMEWORK
A. Social Security Act and Regulations
To be entitled to benefits as the widower of an insured wage earner, a claimant must,
among other requirements, have been in a valid marital relationship for at least nine
months immediately prior to the insured’s death.[7] Social Security Act (Act) §§ 202(f) and 216(a), (g) (defining “surviving spouse”
and “widower”); Act § 216(h)(1)(A); 20 C.F.R. §§ 404.335(a)(1); 404.344-45. SSA looks
to the laws of the state where the insured was domiciled at the time of his death
to determine whether the claimant and insured were validly married. Act § 216(h)(1)(A)(i);
20 C.F.R. § 404.345; see Program Operations Manual System (POMS) GN 00210.004. The requirement for a valid marriage will also be met if, under State law, the claimant
would inherit a spouse’s share of the insured’s personal property if the insured had
died without leaving a will. Id.; GN 00210.004A, C.
Agency policy provides that we will treat a same-sex couple’s non-marital relationship
(such as a civil union, domestic partnership, or reciprocal beneficiary relationship)
as a marital relationship and consider a claimant to be the NH’s spouse for benefit
purposes if the state of the NH’s domicile would allow the claimant to inherit a spouse’s
share of the NH’s personal property if the NH died without leaving a will. POMS GN 00210.004A. To determine whether a claimant in a non-marital relationship is considered married
for benefit purposes, the non-marital relationship must (1) be valid in the place
in which it was established and (2) it must qualify as a “marital relationship” using
the laws of the state of the NH’s domicile. POMS GN 00210.004C.
B. New York Law
Executive Order No. 48, dated January 7, 1993, created a registry for domestic partnerships
between domestic partners who fulfilled a number of conditions, including that either
both partners were residents of New York City, or at least one partner was employed
by the City of New York. See Executive Order No. 48 (Domestic Partnership Registration Program), City of New York,
Jan. 7, 1993. A domestic partnership may be entered into by two people who: 1) are
eighteen years of age or older, 2) neither of whom is married or related by blood
in a manner that would bar their marriage in New York State, 3) who have a close and
committed personal relationship, 4) who live together and have been living together
on a continuous basis, and 5) who have registered as domestic partners and have not
terminated the domestic partnership. Id. Persons may register as domestic partners if they are either 1) residents of the
City of New York, or 2) at least one partner is employed by the City on the date of
registration. Id. A person is not eligible to register as a domestic partner if, at the time of registration
or at any time during the prior six months, he or she was registered as a member of
another domestic partnership. Id. In order to register, the partners must execute a domestic partnership registration
certificate and submit it to the City Clerk, who maintains a registry of domestic
partnerships. Id.
In 1998, the New York City Council enacted the provisions of that and earlier executive
orders into local law. See New York City, N.Y., Code §§ 3-240 n.8, 3-241 (1998); Slattery v. City of New York, 697 N.Y.S. 2d 603 (N.Y. App Div. 1st Dept. 1999) (holding that New York City’s Domestic Partners Law was valid to the
extent challenged and did not conflict with State law).
New York City domestic partnerships extended rights including: visitation with domestic
partners in City facilities; health benefits, bereavement and child care leave for
City employees; and status as a family member for purposes of New York City-owned
or operated housing. See New York City, N.Y., Code § 3-244; Lennon v. Charney, 797 N.Y.S. 2d 891 (Sup 2005); Slattery v. City of New York, 686 N.Y.S. 2d 683, 686 (N.Y. Sup. Ct. 1999), aff’d as modified by 697 N.Y.S. 2d
603 (1999). However, a New York City domestic partnership does not include intestacy
rights. See
Slattery, 686 N.Y.S. 2d at 688, aff’d as modified 697 N.Y.S. 2d 603 (1999).
C. New Jersey State Law
New Jersey’s Domestic Partnership Act took effect on July 10, 2004, and provided that
a “domestic partnership, civil union or reciprocal beneficiary relationship entered
into outside of this State, which is valid under the laws of the jurisdiction under
which the partnership was created, shall be valid in this State.” N.J. Stat. Ann.
§ 26:8A-6(c) (2016). On December 21, 2006, the New Jersey Legislature enacted the
Civil Union Act, which created civil unions for same-sex couples, effective February
19, 2007. See N.J. Stat. Ann. § 37:1-28, et seq. On February 16, 2007, the New Jersey Attorney General issued an opinion stating that
same-sex relationships validly established under the laws of other jurisdictions would
be recognized, beginning on February 19, 2007, either as a valid civil union or domestic
partnership, but not as a same-sex marriage. Recognition in New Jersey of Same-Sex Marriages, Civil Unions,
Domestic Partnerships and Other Government-Sanctioned, Same-Sex Relationships
Established Pursuant to the Laws of Other States and Foreign Nations, N.J. Att’y Gen. Op. 3-2007 (Feb. 16, 2007), available at http://www.nj.gov/oag/newsreleases07/ag-formal-opinion-2.16.07.pdf (Formal Opinion 3-2007). Formal Opinion 3-2007 further stated that:
Domestic partnerships, reciprocal beneficiary relationships and other government-sanctioned,
same-sex relationships that afford rights and obligations less expansive than the
rights and benefits of marriage are valid in New Jersey and will provide all of the
rights and obligations of a New Jersey domestic partnership.
New Jersey courts held that Formal Opinion 3-2007 was entitled to judicial deference.
See Quarto v. Adams, 929 A.2d 1111, 1117 (N.J. Super. Ct. App. Div. 2007).
On June 26, 2013, the U. S. Supreme Court struck down Section 3 of the federal Defense
of Marriage Act as unconstitutional and held that the Federal Government was required
to provide the same rights and responsibilities to same-sex couples who were married
under state law as to married couples of the opposite sex. United States v. Windsor, 570 U.S. 12 (2013). On September 27, 2013, the New Jersey courts found that civil
union partners were denied equal access to federal benefits, and held that New Jersey
must extend the right to civil marriage to same-sex couples. Garden State Equality v. Dow, 82 A.3d 336, 369 (N.J. Sup. Ct., 2013), stay denied 79 A.3d 479, certification granted 75 A.3d. 1157, stay
denied 79 A.3d. 1036. An order accompanying the Garden
State decision directed state officials to allow same-sex couples who qualified for civil
marriage to marry in New Jersey beginning on October 21, 2013. See Id. The State of New Jersey Department of Health also directed recognition of out-of-state
same-sex marriages, stating that “[j]ust as with opposite-sex couples, so long as
[the] out-of-state marriage is consistent with the laws and public policy of New Jersey,
[the] marriage is valid and recognized in this State and [the individuals] will not
need to enter into a New Jersey marriage.” State of New Jersey Department of Health,
Frequently Asked Questions – Same-Sex Marriage, available at http://www.nj.gov/health/vital/contact-us/faqs/ (last accessed February 7, 2017).
However, recognition of same-sex civil unions and marriages following Windsor did not apply to domestic partnerships. As noted by the State of New Jersey Department
of Health, “[a] domestic partnership is still valid as it was entered into under the
law in place at the time. However, [domestic partners] continue to have only the rights
afforded to domestic partners and not the full rights of married couples as are given
to civil union couples.” State of New Jersey Department of Health, Frequently Asked
Questions – Domestic Partnership Records, available at http://www.nj.gov/health/vital/contact-us/faqs/ (last accessed February 7, 2017).
Since January 12, 2006, under New Jersey intestacy law, a surviving domestic partner
will inherit a spouse’s share of a decedent’s personal property if the decedent died
without leaving a will. See N.J. Stat. Ann. § 3B:5-3 (2016) (Setting out the intestate share of decedent’s surviving
spouse or domestic partner); Lewis v. Harris, 188 N.J. 415, 448 (2008) (noting New Jersey’s 2005 statutory amendments extending
inheritance privileges when deceased domestic partner dies without a will); POMS GN 00210.004D.5 (stating that New Jersey law provides spousal inheritance rights to domestic partners).
ANALYSIS
To determine whether a claimant in a non-marital relationship is considered married
for benefit purposes, the non-marital relationship must (1) be valid in the place
in which it was established and (2) it must qualify as a “marital relationship” using
the laws of the state of the NH’s domicile. POMS GN 00210.004C.
Because the NH was domiciled in New Jersey at the time of his death, we will look
to the laws of New Jersey to determine if the Claimant can collect widower’s benefits
on the account of the NH. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345.
Here, the non-marital relationship is valid in the place in which it was established.
Specifically, the Claimant and the NH entered into a valid domestic partnership on
April XX, 1993 in New York City. The domestic partnership was valid in New York City
because the Claimant and NH satisfied the requirements for entering into a domestic
partnership and they were registered as domestic partners. See Certificate of Domestic Partnership; Executive Order No. 48 (Domestic Partnership
Registration Program), City of New York, Jan. 7, 1993; New York City, N.Y., Code §
3-241; see also Slattery, 697 N.Y.S. 2d 603 (New York City’s domestic partnership law is not in conflict with
New York State law). The Certificate of Domestic Partnership indicates that the Claimant
and NH were both residing at the same address in New York City. See id. In addition, the Claimant affirmed that he and the NH remained in the domestic partnership
until the NH’s death on May XX, 2008. See Affidavit of Domestic Partnership filed on April XX, 2009 by the Claimant with the
New Jersey Division of Taxation.
Because this domestic partnership was valid under the laws of the jurisdiction under
which it was created, we believe that New Jersey would recognize it as a valid domestic
partnership in New Jersey. See N.J. Stat. Ann. § 26:8A-6(c); Formal Opinion 3-2007. As noted above, “[d]omestic partnerships…
that afford rights and obligations less expansive than the rights and benefits of
marriage are valid in New Jersey and will provide all of the rights and obligations
of a New Jersey domestic partnership.” Recognition in New Jersey of Same-Sex Marriages,
Civil Unions, Domestic Partnerships and Other Government-Sanctioned, Same-Sex Relationships
Established Pursuant to the Laws of Other States and Foreign Nations, N.J. Att’y Gen.
Op. 3-2007 (Feb. 16, 2007), available at http://www.nj.gov/oag/newsreleases07/ag-formal-opinion-2.16.07.pdf
(Formal Opinion 3-2007). As a result, we believe the domestic partnership is equivalent
to a “marital relationship” for purposes of determining intestate succession under
the laws of New Jersey. At the time of the NH’s death, New Jersey law allowed a surviving
domestic partner to inherit a spouse’s share of the domestic partner’s personal property
if the domestic partner died without leaving a will and, accordingly, the domestic
partnership conveys spousal inheritance rights and is considered a marital relationship
for the purpose of determining entitlement to widower’s benefits under Title II of
the Act. See N.J. Stat. Ann. §§ 3B:5-3 (intestate share of domestic partner), 26:8A-6(c) (recognition
of domestic partnerships entered into outside of New Jersey); POMS GN 00210.004.D.5 New Jersey (stating that New Jersey law provides spousal inheritance rights to
domestic partners). As a result, for purposes of determining entitlement to benefits
under the Act, the Claimant and the NH are considered to have been in a valid marital
relationship for at least nine months immediately prior to the NH’s death. See Act §§ 216(a), (g), (h)(1)(A)(i); 20 C.F.R. §§ 404.335(a)(1); 404.344-45.
CONCLUSION
Because the Claimant’s New York City domestic partnership with the NH conferred intestacy
rights under New Jersey law, the domestic partnership is a marital relationship for
purposes of determining entitlement to widower’s benefits under Title II of the Act.