TN 15 (02-20)

PR 05830.175 Italy

A. PR 19-227 Same-Sex Civil Union in Florence, Italy

Date: November 25, 2019

1. Syllabus

The number holder (NH) and Claimant entered into a civil union in December 2016 in Florence, Italy. We believe that the courts of the District of Columbia would find that the claimant’s civil union with the NH would allow him the same intestate succession rights that a spouse of the NH would have. We believe the courts of the District of Columbia would determine that a valid civil union existed; therefore, any entitlements associated with this civil union, such as intestate succession, apply. The agency could deem the claimant and the NH as spouses based on the evidence presented. Accordingly, the agency can entitle the claimant to husband’s benefits on the record of the NH.

2. Opinion

Question Presented

M~ (claimant) applied for auxiliary benefits as a spouse on the earnings record of J~, the insured number holder (NH). You have asked if the claimant is entitled to Title II husband’s insurance benefits on the NH’s record based on a civil union with the NH that occurred in Florence, Italy.

Anwser

Claimant alleges that he and the NH entered into a civil union in Florence, Italy. We believe that the courts of the District of Columbia would find that the claimant’s civil union with the NH would allow him the same intestate succession rights that a spouse of the NH would have. Thus, the agency may deem the claimant to be the NH’s spouse for Title II purposes.

Background

On December xx, 2016, an Italian civil union was performed between the NH and the claimant. The claimant filed for auxiliary husband’s benefits on the record of the NH on July xx, 2019.

Analysis[1]

Federal Law

To be entitled to benefits as a spouse under the Social Security Act (Act), a claimant must show, among other things that he or she is the “husband” or “wife” of an insured NH. See 42 U.S.C. §§ 402(b), (c), 416(a)(1); 20 C.F.R. § 404.330. As pertinent here, the Act provides two methods for a claimant to show that he or she is the husband or wife of an NH who is domiciled outside the United States. First, a claimant is the husband or wife of such insured if, among other things, the courts of the District of Columbia would find that the claimant was validly married to the insured at the time he or she applied for benefits. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, even if a claimant was not validly married to such insured at the time he or she applied for benefits, he or she will be deemed to be the insured’s husband or wife if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, he or she would have the “same status” as a husband or wife of the insured with respect to the taking of such property. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R.§ 404.345.

Here, Claimant does not allege that a marriage to the NH existed, nor is there any evidence of a valid marriage. Instead, the NH and Claimant entered into a civil union in Italy. Therefore, we must examine whether the claimant can be deemed to be the insured’s spouse in accordance with the Act. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. In so doing, we must determine whether this relationship would allow the claimant to have the requisite status as a spouse with respect to inheritance of the NH’s intestate property under the law applied by the District of Columbia. Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. 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)). In this case, the inheritance laws of Florence, Italy, the NH’s domicile, apply.

The Claimant Has the Same Status as a Spouse of the NH under Intestacy Law of Florence, Italy

Since the claimant was not validly married to NH, the agency will deem the claimant to be the NH’s spouse if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, he has the “same status” as a spouse 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. Because District of Columbia law determines intestate inheritance rights by the law of the NH’s domicile, we apply Italian law.

In Italy, Law No. 76 of May 2016 regulates civil unions among same-sex persons. [2] Civil unions between same-sex couples became legal on June xx, 2016. [3] A civil union between same-sex parties allows for the same inheritance rights as a legally married couple. [4] Therefore, Italian law recognizes the rights of same-sex married couples to inherit from their deceased spouse’s property. In other words, under the law of Italy, a surviving partner of a civil union has spousal rights of intestate inheritance from the other partner.

Here, the claimant and NH entered into a civil union on December xx, 2016 in Florence, Italy. Given that the claimant and NH are partners in a civil union, they both have rights of intestate inheritance from the other partner. As a result, we believe the courts of the District of Columbia would determine that a valid civil union existed; therefore, any entitlements associated with this civil union, such as intestate succession, apply. The agency could deem the claimant and NH as spouses based on the evidence presented. Accordingly, the agency can entitle the claimant to husband’s benefits on the record of the NH.

Conclusion

Based on the analysis above, we believe that the courts of the District of Columbia would find that the claimant’s civil union with the NH would allow him the same intestate succession rights that a spouse of the NH would have. Thus, the agency may deem the claimant to be the NH’s spouse for Title II purposes.


Footnotes:

[1]

Our discussion of the law of Italy is based in part on information we received from the Library of Congress. LL File No. 2019-018082.

[2]

 

LL File No. 2019-018082, Legge 20 maggio 2016,n. 76 Regolamentazione delle Unioni Civili tra Persone dello Stesso Sesso e Disciplina delle Convivenze, Gazzetta Ufficiale [Official Gazette] No. 118 (May 21, 2016),https://perma.cc/PAC7-BM6B.)

[3]

LL File No. 2019-018082, page 1.

[4]

Id


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505830175
PR 05830.175 - Italy - 02/12/2020
Batch run: 02/12/2020
Rev:02/12/2020