TN 46 (11-18)

PR 05005.010 District of Columbia

A. PR 18-107 Recognition of a D.C. Opposite-Sex Domestic Partnership for Entitlement to TII

Date: March 29, 2018

1. SYLLABUS

The number holder ( NH) died in the District of Columbia (D.C.); therefore, the Agency looks to the D.C. law to determine survivorship rights for the NH’s estate. The (NH) and the Claimant entered into a domestic partnership in the D.C. The NH and the Claimant remained in that domestic partnership, while residing in D.C., until the NH’s death. According to D.C.’s intestacy statute, a surviving domestic partner is treated the same as a surviving spouse with respect to intestate inheritance. Based on the evidence provided, the Agency should recognize the D.C. domestic partnership between NH and the Claimant for purposes of entitlement to Title II benefits as the widower of the NH.

2. Opinion

QUESTION PRESENTED

You asked whether the Agency would recognize an opposite-sex domestic partnership entered into in the District of Columbia (D.C.) to establish a non-marital legal relationship for purposes of entitlement to Title II benefits.

ANSWER

We believe that a member of an opposite-sex D.C. domestic partnership is entitled to Title II benefits because a D.C. domestic partnership is a non-marital legal relationship conferring inheritance rights on a surviving domestic partner under D.C. law.

BACKGROUND[1]

On November XX, 2014, the Number Holder, M~ (NH), and the Claimant, S~ (CL), entered into a domestic partnership in Washington, D.C. The NH and the CL remained in that domestic partnership, while residing in D.C., until the NH’s death on January XX, 2018. The CL filed a surviving spouse’s benefit application on April XX, 2018.

DISCUSSION

A. Federal Law

To be entitled to survivor’s benefits under Title II of the Social Security Act, a claimant must establish that she or he is the widow or widower of an individual who died fully insured.[2] See Social Security Act §§ 202(e), (f), 416(c)(1),(g)(1); 20 C.F.R. § 404.335. The Agency will find a claimant to be the widow or widower of an insured individual if the courts of the state [3] in which the insured individual was domiciled at the time of his or her death would find that the claimant was validly married to the insured individual when the death occurred. Social Security Act § 216(h)(1)(A)(i).

A “non-marital legal relationship,” such as a civil union or domestic partnership, can be treated as a marital relationship. See POMS GN 00305.005 (Determining Marital Status) (“[i]n determining whether a claimant qualified as a spouse under the Social Security Act, consider all of the following types of marital relationships . . . [including] domestic partnerships”).

The Agency will recognize a non-marital legal relationship if, under the laws of the State where the insured individual had a permanent home upon death, the claimant “ would be able to inherit a wife’s, husband’s, widow’s, or widower’s share of the insured’s property if he or she were to die without leaving a will.” Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

B. D.C. Law

The information provided to us indicates that NH died in D.C. As such, the Agency looks to D.C. law to determine survivorship rights for his estate. See Social Security Act § 216(h)(1)(A)(i); see also D.C. Code Ann. § 19-101.01 (“Sections 19-101.01 to 19-101.06 [the sections governing survivor’s rights] apply to the estate of a decedent who dies domiciled in the District of Columbia.”).

D.C. established domestic partnerships in 1992. See Health Care Benefits Expansion Act of 1992 (D.C. Law 9-114 (effective June 11, 1992), codified at D.C. Code § 32-701 to 32-710); see also DC.gov Department of Health, domestic partnership information, https://dchealth.dc.gov/service/domestic-partnership (last visited June 11, 2018)[4] . The Act was fully effectuated in 2002

In 2006, D.C. passed the Domestic Partnership Equality Amendment Act (“2006 Act”), which greatly expanded the benefits granted domestic partners, conferring upon them “similar rights and responsibilities held by spousal couples in the areas of spousal immunity, inheritance, surviving spouses and children, spousal support, and public assistance.” Domestic Partnership Equality Amendment Act of 2006, D.C. Law 16-79 (effective Apr. 4, 2006), available at https://code.dccouncil.us/dc/council/laws/docs/16-79.pdf (last visited June 14, 2018).

In particular, the 2006 Act amended D.C.’s intestacy statute to treat a surviving domestic partner the same as a surviving spouse with respect to intestate inheritance, D.C. Code § 19–301 et seq.; see also Domestic Partnership Equality Amendment Act of 2006, D.C. Law 16-79, available at https://code.dccouncil.us/dc/council/laws/docs/16-79.pdf. As a result, D.C.’s intestacy statute provides that “the personal estate of the deceased resident of the District [of Columbia], if not bequeathed, shall be distributed, to the surviving spouse or surviving domestic partner . . . .” D.C. Code § 19-301. The statute further provides that domestic partners are treated the same as surviving spouses with respect to the size of the share of the decedent’s estate. D.C. Code § 19-302.[5]

C. Analysis of D.C. Domestic Partnerships for Purposes of Title II Benefits

Here, as evidenced by the Certificate of Domestic Partnership issued by the D.C. Department of Health, the CL and the NH entered into a domestic partnership in D.C. in November 2014.

As discussed above, D.C. law confers upon a surviving domestic partner the same “rights and responsibilities” as a spouse with respect to the right to inherit from an intestate estate. In particular, D.C. law permits a domestic partner to inherit the same intestate share as a spouse. Accordingly, the D.C. domestic partnership between NH and CL meets the criteria for treating a non-marital legal relationship as a marital relationship for purposes of entitlement to Title II benefits. Therefore, we conclude that the Agency should recognize the NH and CL’s D.C. domestic partnership for purposes of entitlement to Title II benefits. See Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

CONCLUSION

For the reasons stated above, it is our opinion that the Agency should recognize the D.C. domestic partnership between NH and CL for purposes of entitlement to Title II benefits and, therefore, that CL is entitled to Title II benefits as the widower of NH.

 


Footnotes:

[1]

This background is based on the information provided to us in the May XX, 2018 email requesting our opinion on this issue.

[2]

Whether the NH died fully insured is outside the scope of this opinion.

[3]

The Agency includes D.C. in the definition of “state.” POMS GN 00210.004.

[4]

By way of background, D.C. domestic partnerships can be same sex or opposite sex. https://dchealth.dc.gov/service/domestic-partnership (last visited June 11, 2018). The statutory rights conferred by the law originally creating domestic partnerships include healthcare and other employment benefits for employees of D.C., the right to hospital visitation as a family member, and the right to make decisions about a domestic partner’s remains after passing. Id.; see also D.C. Code Ann. § 32-704 (“Domestic partnership benefits”). The rights of domestic partners were later broadened under the Domestic Partnership Equality Amendment Act, as discussed above.

[5]

Notably, although the D.C. Code refers to “domestic partners” and “spouses” as two separate categories of relationships rather than by defining “spouses” to include “domestic partners”, as discussed above, the intent of the 2006 Act was clearly to confer upon domestic partners “similar rights and responsibilities held by spousal couples” including in the areas of inheritance and intestacy. Domestic Partnership Equality Amendment Act of 2006, D.C. Law 16-79, available at https://code.dccouncil.us/dc/council/laws/docs/16-79.pdf. Thus, the fact that the Code utilizes the separate terms “domestic partner” and “spouse” is irrelevant, since D.C. law clearly confers the same intestacy rights on both categories of relationships.


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PR 05005.010 - District of Columbia - 11/16/2018
Batch run: 11/16/2018
Rev:11/16/2018