The number holder (NH) was domiciled in Illinois at the time of his death; therefore, we look to the laws of Illinois to determine the claimant’s relationship as the NH’s surviving spouse for Title II purposes. The claimant and NH had a valid West Hollywood domestic partnership which was only applicable in West Hollywood, where it was established. The domestic partnership does not qualify as and is not equivalent to a domestic partnership registered in the State of California. The West Hollywood domestic partnership also is not substantially similar to civil unions recognized by Illinois. Consequently, we believe the Illinois courts likely would not allow the claimant to inherit as the NH’s spouse based on their domestic partnership. Therefore, the agency could reasonably find that the claimant is not the NH’s surviving spouse for Title II purposes and therefore cannot receive a LSDP on the NH’s record.

Questions

You asked whether S~ (claimant), should be allowed to receive a lump-sum death payment (LSDP) based on his domestic partnership with number holder T~ (NH), which was established in West Hollywood, California. At the time of the NH’s death, he and the claimant were living together in Illinois.

Short Answer

No. The domestic partnership was only applicable in West Hollywood, where it was established. The domestic partnership does not qualify as and is not equivalent to a domestic partnership registered in the State of California. The West Hollywood domestic partnership also is not substantially similar to civil unions recognized by Illinois. Consequently, we believe the Illinois courts likely would not allow the claimant to inherit as the NH’s spouse based on their domestic partnership. Therefore, the agency could reasonably find that the claimant is not the NH’s surviving spouse for Title II purposes and therefore cannot receive a LSDP on the NH’s record.

Facts

The claimant provided a copy of a Certificate of Domestic Partnership dated February XX, 2006, issued to him and the NH by the city of West Hollywood, California. At the time they entered into the West Hollywood domestic partnership, the couple was living together in Illinois. Both were domiciled in Illinois at the time of the NH’s death on November x, 2015. Thereafter, the claimant sought payment of a LSDP.

Discussion

I. Agency Guidance

Under Title II of the Social Security Act, a LSDP, which is a one-time payment of $255.00, may be paid to a deceased NH’s surviving spouse who was living in the same household with the NH at the time of his death. 42 U.S.C. § 402(i); 20 C.F.R. §§ 404.390, 404.391. To meet the definition of a surviving spouse for LSDP benefits, the claimant must have been validly married to the NH under the law of the state of the NH’s domicile at the time of the NH’s death, or be able to inherit a spouse’s share of the NH’s intestate personal property under state law. 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345; POMS RS 00210.001(C).

Per POMS GN 00210.004, a non-marital legal relationship (NMLR) encompasses a variety of legal relationships between 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(A). A domestic partnership is an example of a NMLR. Id. SSA will recognize a same-sex NMLR and treat it as a marital relationship for Title II benefit purposes if: (1) the NMLR was valid in the state where it was established, and (2) the claimant could inherit a spouse’s share of the NH’s intestate personal property under the law of the state of the NH’s domicile at the time of the NH’s death. POMS GN 00210.004(A), (C).

II. West Hollywood and California Law

The claimant and NH registered on-line as domestic partners in the city of West Hollywood, California, in February 2006 pursuant to the city’s Domestic Partnership Ordinance (DPO). West Hollywood Municipal Code ch. 2.84, available athttp://qcode.us/codes/westhollywood/. The DPO gives domestic partners limited and enumerated legal rights that include visitation rights in health care facilities and city jails. Id. §§ 2.84.070, 2.84.080. It does not confer inheritance rights.

By contrast, the state of California has a domestic partnership statute, which gives same-sex domestic partners the same rights, protections, and benefits as are granted to spouses. Cal. Fam. Code §§ 297, 297.5. To qualify for the benefits of domestic partnership provided by the State, the couple must file a declaration of domestic partnership with the Secretary of State. Id.§ 298.5. Here, there is no evidence that the claimant and NH registered as domestic partners with the State of California.

Significantly, the couple’s West Hollywood domestic partnership applied only in West Hollywood and did not qualify as a domestic partnership registered in the State of California. As explained on the city’s website:

• •

  The City of West Hollywood’s domestic partnership registration is applicable only within our City limits and there are articles contained in our municipal code that differ from the articles in the State of California’s Domestic Partnership program. You do not qualify for the benefits provided by the State of California unless you register directly with them.

West Hollywood, Frequently Asked Questions, https://www.weho.org/city-government/city-clerk/domestic-partnerships/frequently-asked-questions (last visited June 4, 2019). Thus, although a registered California domestic partnership is equivalent to a marriage under California law, a registered West Hollywood domestic partnership is not. Importantly, the latter does not allow for intestate inheritance rights under California law.

III. Illinois Law

The Illinois Religious Freedom Protection and Civil Union Act (Civil Union Act), which went into effect in June 2011, permits a civil union between two persons of either the same or opposite sex. 750 Ill. Comp. Stat. 75/1. The Civil Union Act makes clear that a civil union is equivalent to a marriage under Illinois law. For example, it states that a “party to a civil union” means and is included in any definition or use of the terms “spouse,” “family,” and other terms that denote the spousal relationship. Id. 75/10. Moreover, the Civil Union Act specifically provides that “[a] party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses.” Id. 75/20. The Civil Union Act also provides for reciprocity with other jurisdictions: “A marriage between persons of the same sex, a civil union, or a substantially similar legal relationship other than common law marriage, legally entered into in another jurisdiction, shall be recognized in Illinois as a civil union.” Id. 75/60.

IV. Analysis

Since the NH was domiciled in Illinois at the time of his death, we look to the laws of Illinois to determine the claimant’s relationship as the NH’s surviving spouse for Title II purposes. And since the claimant and NH entered into a domestic partnership in West Hollywood, it is necessary to determine whether Illinois would allow the claimant to inherit as the NH’s spouse based on their West Hollywood domestic partnership.

Although Illinois’ Civil Union Act provides for reciprocity with other jurisdictions, this reciprocity is contingent upon a “substantially similar legal relationship” to an Illinois same-sex marriage or civil union. However, as discussed above, a West Hollywood domestic partnership confers very limited legal rights, and importantly, does not confer the right of inheritance under California law. West Hollywood Municipal Code ch. 2.84. In other words, unlike an Illinois civil union, it is not the equivalent of a marriage. For this reason, we believe the Illinois courts would likely find that the claimant’s and NH’s West Hollywood domestic partnership is not a “substantially similar legal relationship” to an Illinois same-sex marriage or civil union and would not qualify for reciprocity. As such, the claimant would not be able to inherit a spouse’s share of the NH’s intestate personal property in Illinois based on their West Hollywood domestic partnership.

Conclusion

The claimant and NH had a valid West Hollywood domestic partnership, but it did not give the claimant the same rights as a surviving spouse under California law. Although Illinois allows civil unions and gives reciprocity to “substantially similar legal relationships” from other jurisdictions, a West Hollywood domestic partnership is not substantially similar to an Illinois civil union. Thus, we believe the courts of Illinois likely would not allow the claimant to inherit a spouse’s share of the NH’s intestate personal property based on their West Hollywood domestic partnership . Accordingly, t he agency could reasonably find that the claimant is not the NH’s surviving spouse for Title II purposes and therefore cannot receive a LSDP on the NH’s record.

The number holder (NH) died while domiciled in California. Accordingly, to determine Claimant’s entitlement to widow’s benefits, the agency will look to California law. California law specifically provides for the recognition of a non-marital legal union validly formed in another jurisdiction if it is substantially equivalent to a California domestic partnership. Washington domestic partnership is substantially similar to a California domestic partnership. Both states grant domestic partners the same rights and responsibilities as married spouses, including the right of a surviving domestic partner to inherit intestate to the same extent as a surviving spouse. Therefore, we conclude that the agency can deem the Claimant to be the NH’s spouse for purposes of her entitlement to widow’s benefits. Furthermore, because the Claimant was living with the NH at the time of the NH’s death, the agency can find she is entitled to the lump sum death payment ( LSDP).

Question

You asked whether M~ (Claimant) is entitled to surviving spouse benefits and the lump sum death payment (LSDP) based on the account of G~ (NH), where the Claimant and the NH entered into a domestic partnership in the State of Washington in December 2010, and the NH died while domiciled in California in April 2016.

SHORT ANSWER

Yes. California law specifically provides for the recognition of a non-marital legal union validly formed in another jurisdiction if it is substantially equivalent to a California domestic partnership. We believe the California courts would find the Washington domestic partnership is valid and confers spouse-like inheritance rights to Claimant as the NH’s surviving domestic partner. Accordingly, the agency can conclude that Claimant is entitled to surviving spouse benefits and the LSDP as the NH’s spouse.

SUMMARY OF EVIDENCE

The NH was born on September XX, 1917. Claimant and the NH entered into domestic partnership registered with the State of Washington on December XX, 2010. The NH died on April XX, 2016, while domiciled in Riverside, California. The death certificate did not list information for a surviving spouse or domestic partner.

APPLICABLE LAW

Federal Law

For entitlement to widow’s insurance benefits under Title II of the Social Security Act, a claimant must establish that she is the widow (or surviving divorced wife) of an individual who died fully insured. Social Security Act § 202(e), 20 C.F.R. § 404.335. Under section 216(c) of the Act, the agency will find a claimant to be the widow of an insured individual if she is the surviving wife of the insured and was married to the insured for at least nine months immediately prior to the insured’s death.[1] Social Security Act § 216(c)(1)(E). A claimant is the widow of the insured if the courts of the State in which the insured was domiciled at the time of death would find that claimant and the insured were validly married at the time of death. Social Security Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345 .

However, even if the claimant was not married to the insured individual, the agency will deem the claimant to be the insured individual’s widow if, under the laws of the State where the insured individual had a permanent home, the claimant would be able to inherit a surviving spouse’s share of the insured individual’s personal property if she or he died without leaving a will. Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

A widow who was living with the insured when the insured died can receive the LSDP. See Social Security Act § 202(i); 20 C.F.R. § 404.391.

California Law

In California, two people may establish a domestic partnership if they file a declaration of domestic partnership with the California Secretary of State, and meet the following criteria: (1) neither person has an ongoing marriage or domestic partnership with someone else, (2) the two persons are not related by blood, (3) both persons are at least 18 years of age, (4) both persons are capable of consenting to the domestic partnership, and (5) either (A) both persons are members of the same sex, or (B) at least one of the persons meet the eligibility requirements for old-age Social Security insurance benefits, provided one or both of them is over 62 years of age. Cal. Fam. Code § 297(b). Registered domestic partners have the same rights, protections, and benefits as spouses. Cal. Fam. Code § 297.5(a). Furthermore, a surviving domestic partner may inherit intestate to the same extent as a surviving spouse. Cal. Fam. Code § 297.5(c).

California will recognize a non-marital legal union validly formed in another jurisdiction if it is substantially equivalent to a California domestic partnership. Cal. Fam Code § 299.2.

Washington Law

In Washington, two people may enter into a state registered domestic partnership if (1) both persons share a common residence, (2) both persons are at least 18 years of age, and at least one of them is 62 years of age or older, (3) neither person is married to or in a domestic partnership with another person, (4) both persons are capable of consenting to the domestic partnership, and (5) the persons are not nearer of kin to each other than second cousins, and neither person is sibling, child, grandchild, aunt, uncle, niece, or nephew to the other person. Revised Code of Washington (R.C.W.) § 26.60.030. For all purposes under Washington law, state registered domestic partners shall be treated the same as married spouses. R.C.W. § 26.60.015.

ANALYSIS

The NH died while domiciled in California. Accordingly, to determine Claimant’s entitlement to widow’s benefits, the agency will look to California law. California will recognize the couple’s domestic partnership because it was valid under the laws of Washington and it was substantially equivalent to a California domestic partnership. See Cal. Fam Code § 299.2.

The Washington Secretary of State issued a certificate recognizing that Claimant and the NH registered their domestic partnership with the State on December XX, 2010. We have no information suggesting that the couple did not meet the eligibility requirements for entering a civil union. See R.C.W. § 26.60.030. In particular, we note that the NH was over 62 years of age at the time the couple registered their domestic partnership. Therefore, for purposes of this opinion, we assume that the couple met the requirements to establish a valid domestic partnership in the State of Washington.

Moreover, a Washington domestic partnership is substantially similar to a California domestic partnership. Both states grant domestic partners the same rights and responsibilities as married spouses, including the right of a surviving domestic partner to inherit intestate to the same extent as a surviving spouse. See Cal. Fam. Code § 297.5; R.C.W. § 26.60.015. Additionally, both states have very similar requirements for establishing a domestic partnership. See Cal. Fam. Code § 297(b); R.C.W. § 26.60.030.

Under California law, domestic partners receive the same rights as a married couple, including the right to inherit intestate from each other to the same extent as a surviving spouse. Cal. Fam. Code § 297.5 ; see also Program Operations Manual System (POMS) GN 00210.004.D (noting California domestic partnerships confer spousal inheritance rights). Thus, under California law, Claimant would inherit intestate from the NH to the same extent as a surviving spouse, and the agency deems Claimant the widow of NH. See Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345. In addition, the domestic partnership lasted well over nine months preceding the NH’s death, and thus meets the duration requirement u nder section 216(c) of the Act. See POMS GN 00210.004.E (duration requirement applies to non-marital legal relationships).

Claimant is also entitled to the LSDP because the couple was living together at the time of the NH’s death. See Social Security Act § 202(i); 20 C.F.R. § 404.391 .

CONCLUSION

Accordingly, based on the foregoing reasons, we conclude that the agency can deem the Claimant to be the NH’s spouse for purposes of her entitlement to widow’s benefits. Furthermore, because the Claimant was living with the NH at the time of the NH’s death, the agency can find she is entitled to the LSDP.

[1]In addition to establishing that she is the spouse of the insured decedent, Claimant must also establish she meets the other criteria for entitlement to widow’s benefits. See 20 C.F.R. § 404.335. You have not asked, and we have not analyzed, whether Claimant meets these other requirements.

The number holder (NH) died while domiciled in Mexico; therefore, the agency applies the District of Columbia law to determine the status of the Claimant’s relationship to the NH. The NH and the Claimant were registered domestic partners in the State of California. The District Code will recognize non-marital relationships as domestic partnerships under District law. In the District of Columbia, each domestic partner has a right to inherit intestate from the other domestic partner to the same extent as a surviving spouse. Under the District of Columbia law, the California domestic partnership of Claimant and the NH would be recognized as a domestic partnership with the same rights as surviving spouses, for relevant purposes, including the right to inherit intestate. As a result, the Claimant could inherit intestate from the NH to the same extent as a surviving spouse under District of Columbia law. Accordingly, we believe the agency can entitle the Claimant to surviving spouse benefits and LSDP.

QUESTION

You asked whether claimant R~ (Claimant), the surviving domestic partner of the number holder, M~ (NH), is entitled to surviving spouse benefits and the Lump-Sum Death Payment (LSDP).

SHORT ANSWER

Yes. Claimant and NH entered into a valid domestic partnership in California. Because the NH died domiciled in Mexico, the agency applies District of Columbia law. Under District of Columbia law, this domestic partnership conferred rights permitting Claimant to inherit intestate from NH to the same extent as a surviving spouse. Accordingly, the agency deems Claimant to be the NH’s surviving spouse for purposes of entitlement to surviving spouse benefits and LSDP.

SUMMARY OF EVIDENCE

On January XX, 2009, Claimant and NH became registered domestic partners in the State of California, as evidenced by the Certificate of Registered Domestic Partnership issued by the State of California. Based on information provided by the C~, California Field Office, the NH and Claimant resided in, Mexico, since February 2010. The NH died in Mexico on April XX, 2016, according to a Report of Death of a U.S. Citizen issued by the U.S. Consulate General, T~, Mexico.

APPLICABLE LAW

Federal Law

To be entitled to survivor’s benefits under Title II of the Social Security Act (Act), a claimant must establish that she or he is the widow or widower of an individual who died fully insured.^[1] See Social Security Act §§ 202(e) & (f), 216(c)(1) & (g)(1); 20 C.F.R. § 404.335. Similarly, under the Act, upon the death of an insured individual, a LSDP may be paid to the insured’s widow or widower who was living in the same household as the insured at the time of death. Social Security Act § 202(i); 20 C.F.R. § 404.391. Under Section 216(h) of the Act, 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 resided at the time of his or her death would find that the claimant was validly married to the insured when the death occurred.^[2] Social Security Act § 216(h)(1)(A)(i). However, even if the claimant was not married to the insured individual, the agency will deem the claimant to be the insured’s widow or widower if, under the laws of the State where the insured had a permanent home, the claimant would be able to inherit a surviving spouse’s share of the insured’s personal property if he or she died without leaving a will. Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345. Under such circumstances, the agency will treat the couple’s relationship as a marital relationship. See id.

In cases where the insured individual’s permanent home was not in one of the 50 States, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, or American Samoa, the agency will look to the laws of the District of Columbia in order to determine whether the claimant was the insured’s widow or widower. Social Security Act § 416(h)(1)(A); 20 C.F.R. § 404.345.

In addition to establishing that she or he is the insured’s widow or widower, to recover surviving spouse benefits, the claimant must show that she or he meets one of the following conditions: (1) his or her relationship to the insured as wife or husband lasted for at least nine months immediately before the insured died; (2) his or her relationship to the insured as wife or husband did not last for at least 9 months but another qualifying condition is satisfied^[3] ; (3) he or she and the insured had a child together; or (4) in the month before marrying the insured, he or she was entitled to or could have been entitled to certain benefits or payments. See Social Security Act §§ 202(e) & (f); 20 C.F.R. § 404.335.

District of Columbia Law

Pursuant to the Health Care Benefits Expansion Act of 1992 (DC Law 9-114 (effective June 11, 1992), codified at D.C. Code §§ 32-701 to 32-710), the District of Columbia (District) recognizes domestic partnerships. To establish a domestic partnership in the District, both persons must register as domestic partners by executing and filing a declaration of domestic partnership with the Mayor. D.C. Code § 32-702(a). The declaration must be signed by the domestic partners and affirm under penalty of perjury that each person:

(1) is at least 18 years old and competent to contract;

(2) is the sole domestic partner of the other person;

(3) is not married; and

(4) is in a committed relationship with the other person.

Id. In the District, each domestic partner has a right to inherit intestate from the other domestic partner to the same extent as a surviving spouse. Id. §§ 19-301, 19-302.^[4]

Further, the District recognizes non-marital relationships established in accordance with the laws of other jurisdictions that are “substantially similar” to domestic partnerships in the District, where the term “substantially similar” is “broadly construe[d]”. Id. § 32-702(i)(1). The District Code provides that the Mayor shall establish and maintain a certified list of jurisdictions for which the District will recognize non-marital relationships as domestic partnerships under District law. Id. However, if a jurisdiction is not included in the Mayor’s certified list, the District Code directs that the non-marital relationship shall be recognized as a domestic partnership in the District if, under the laws of that jurisdiction, the relationship has all the rights and responsibilities of marriage. Id. § 32-702(i)(2). As discussed below, California is included in the Mayor’s certified list.

California Law

To establish a domestic partnership in California, both persons must file a declaration of domestic partnership with the Secretary of State, declaring that:

(1) neither person is married or a member of another domestic partnership;

(2) the two persons are not related by blood;

(3) both persons are at least 18 years of age;

(4) both persons are members of the same sex; and

(5) both persons are capable of consenting to the domestic partnership.

See Cal. Fam. Code §§ 297(b), 298.5(a).^[5] The Secretary of State registers the declaration of domestic partnership and issues a Certificate of Registered Domestic Partnership to the couple. Id. § 298.5(b).

In California, registered domestic partners have the same rights and responsibilities as spouses in a marital relationship. Id. § 297.5(a). Further, surviving registered domestic partners have the same rights and responsibilities as surviving spouses in a marital relationship. Id. § 297.5(c); see Cal. Prob. Code § 37.

ANALYSIS

Claimant and the NH entered into a registered domestic partnership in California on January XX, 2009, approximately seven years before the NH’s death. The relationship therefore exceeds the nine-month duration requirement for surviving spouse benefits.^[6] See 20 C.F.R. § 404.335(a)(1); Program Operations Manual System (POMS) GN 00210.004.

Claimant was residing with the NH in Mexico at the time of NH’s death. Accordingly, to determine Claimant’s entitlement to surviving spouse benefits, the agency will look to District of Columbia law. If, under District laws, Claimant would be able to inherit intestate from the NH to the same extent as a surviving spouse, then the agency will deem Claimant to be the NH’s widower. See Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

The District will recognize a non-marital relationship formed in another jurisdiction – and treat it the same as a domestic partnership in the District – if: (1) the jurisdiction is included in the Mayor’s certified list of jurisdictions for which the District recognizes non-marital relationships; or (2) under the laws of the other jurisdiction, the non-marital relationship provides all the rights and responsibilities of marriage in that jurisdiction. D.C. Code § 32-702(i)(1)-(2).

Both alternatives are satisfied here.

First, California is included on the Mayor’s list as a jurisdiction for which the District will recognize non-martial relationships as domestic partnerships in the District. See D.C. Mun. Regs. tit. 29, § 8001.6(a) (providing that domestic partnerships registered in California pursuant to California Family Code § 297 et. seq. are recognized as domestic partnerships in the District).

Second, the State of California bestows the same rights and responsibilities on registered domestic partners as spouses receive in a marriage. Cal. Fam. Code § 297.5(a), (c).

Accordingly, under either alternative, the District of Columbia will recognize the California domestic partnership between Claimant and the NH as a domestic partnership in the District. See D.C. Code § 32-702(i)(1) & (2). In the District, registered domestic partners receive the same rights as married couples for relevant purposes, including the right to inherit intestate. See D.C. Code § 19-302; see also POMS GN 00210.004 (noting District domestic partnerships provide for “spousal inheritance rights”). The Claimant could therefore inherit intestate from the NH under District laws, and the agency will deem him to be the NH’s surviving spouse. See Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

In addition, because Claimant was living in the same household as the NH at the time of his death, the agency will deem Claimant to be the NH’s surviving spouse entitled to the LSDP. Social Security Act § 202(i); 20 C.F.R. § 404.391.

CONCLUSION

Because the NH was domiciled in Mexico at the time of death, the agency uses District of Columbia law to determine the status of Claimant’s relationship to the NH. Under District of Columbia law, the California domestic partnership of Claimant and the NH would be recognized as a domestic partnership with the same rights as surviving spouses, for relevant purposes, including the right to inherit intestate. As a result, Claimant could inherit intestate from the NH to the same extent as a surviving spouse under District of Columbia law. Accordingly, we believe the agency can entitle Claimant to surviving spouse benefits and LSDP.

The number holder (NH) was domiciled in Washington at the time of her death; therefore, the agency looks to the Washington law to determine if the NH and the claimant were spouses for entitlement to widow’s benefits. The claimant and NH registered as domestic partners under California law in 2009. They moved to Washington State and they never married or applied for domestic partnership in their new state of domicile. In Washington, registered domestic partners have the same privileges as married spouses, including the right for the surviving partner to inherit intestate from the other. The claimant and NH registered as domestic partners in California and Washington law recognizes their California domestic partnership to be the same as a domestic partnership registered in Washington State. Accordingly, the claimant and NH were spouses for purposes of determining the claimant’s entitlement to widow’s benefits under Title II of the Act.

QUESTION PRESENTED

Whether H~ (the claimant) and E~, the deceased number holder (NH), should be considered spouses for purposes of the claimant’s entitlement to widow’s benefits under Title II of the Social Security Act (Act) where the same-sex couple registered as domestic partners in California but were domiciled in Washington State when the NH died.

BRIEF ANSWER

Yes. The claimant and NH were spouses for purposes of determining entitlement to widow’s benefits. The Social Security Administration (agency) deems a non-marital legal relationship that conveys spousal inheritance rights to be a spousal relationship for determining eligibility for widow’s benefits. In Washington, registered domestic partners have the same privileges as married spouses, including the right for the surviving partner to inherit intestate from the other. Although the claimant and NH registered as domestic partners in California, Washington law recognizes their domestic partnership to be the same as a domestic partnership registered in Washington State. Accordingly, for purposes of determining entitlement to widow’s benefits, the claimant and NH were spouses.1

SUMMARY OF FACTS

In July 2009, the claimant and NH registered as domestic partners under California law. The NH, born on June XX, 1930, was over age 62 at the time of the registration. In June 2012, the claimant and NH moved to Washington State. They never married or applied for domestic partnership in their new state of domicile.

The NH died in August 2016 in V~, Washington. Her death certificate describes her marital status as “never married.” In November 2016, the claimant applied for widow’s benefits based on the NH’s record.

DISCUSSION

I. Applicable Law

A. Federal Law

Title II of the Act entitles the widow of an insured individual to widow’s benefits if she meets all the eligibility requirements. 42 U.S.C. §§ 402(e), 402(f); 20 C.F.R. § 404.335. One of these requirements is that the widow was the insured individual’s spouse for at least 9 months before the death of the insured individual. 42 U.S.C. §§ 402(e), 402(f); 20 C.F.R. § 404.335. To determine whether two individuals were spouses, the agency looks to the laws of the state where the insured individual was domiciled when he or she died to determine whether the two were validly married. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. If the individuals were in a non-marital legal relationship that conveys spousal inheritance rights under the laws of the state of domicile, the agency will deem the individuals as spouses for purposes of eligibility to widow’s benefits. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

B. California Law

Beginning January 2000, California has permitted any two same-sex individuals to enter a registered domestic partnership if (1) neither person has an ongoing marriage or domestic partnership with someone else; (2) the individuals are not related by blood; (3) both individuals are at least 18 years of age; and (4) both individuals are capable of consenting to the domestic partnership. Cal. Fam. Code § 297(b); see POMS GN 00210.004(D)(5).

Registered domestic partners in California have the same rights, protections, benefits, responsibilities, obligations, and duties “as are granted to and imposed upon spouses.” Cal. Fam. Code § 297.5(a). An individual in a registered domestic partnership has a right to inherit intestate from the other partner the same as a surviving spouse. Cal. Fam. Code § 297.5(c).

C. Washington Law

Washington recognizes registered domestic partnerships from other jurisdictions as long as they are “substantially equivalent to a domestic partnership” under Washington law.2 Wash. Rev. Code § 26.60.090. Any domestic partnership from another jurisdiction that is substantially equivalent “shall be treated the same as a domestic partnership registered in [Washington State].” Id. Washington law “grants reciprocity to domestic partnerships already existing in other jurisdictions when Washington’s registered domestic partnership law became effective.” Walsh v. Reynolds, 335 P.3d 984, 990 n.15 (Wash. Ct. App. 2014) (citing Wash. Rev. Code § 26.60.090). Registered domestic partnerships in Washington became effective July 2007. POMS GN 00210.004(D)(5).

Registered domestic partners share the status of spouses under Washington law. Wash. Rev. Code 26.60.015 (providing that domestic partners “shall be treated the same as married spouses” for all purposes under state law). Registered domestic partners in Washington therefore have the same intestate inheritance rights as married spouses. Wash. Rev. Code 11.04.015.

II. Analysis

The NH was domiciled in Washington at the time of her death. The agency thus looks to Washington law to determine if she and the claimant were spouses for purposes of assessing the claimant’s entitlement to widow’s benefits. 20 C.F.R. § 404.345; see POMS RS 00207.001(A)(1)(a)(1). Because the claimant does not allege that there was a marriage, we need not address the requirements for a valid marriage in Washington. We address instead the claimant’s registered domestic partnership. In Washington, registered domestic partners have the same intestate inheritance rights as married spouses. Wash. Rev. Code 11.04.015. The claimant and NH will therefore be deemed to have been in a spousal relationship for widow’s benefits eligibility purposes if they were in a valid registered domestic partnership under Washington law. 20 C.F.R. § 404.345.

Although the claimant and NH never registered in Washington as domestic partners, Washington would likely recognize their valid California-registered domestic partnership through reciprocity because, in this specific instance, it is “substantially equivalent” to a domestic partnership under Washington law. Wash. Rev. Code § 26.60.090. The registration requirements under California and Washington domestic partnership law are largely similar except for one substantial distinction: where California merely requires both same-sex individuals to be at least 18 years of age, Washington also requires that at least one of the two individuals is age 62 or older. Compare Cal. Fam. Code § 297(b) with Wash. Rev. Code 26.60.030. Nonetheless, because the NH was older than 62 when she and the claimant registered for domestic partnership in California, their partnership was “substantially equivalent” to a domestic partnership under Washington law and would thus “be treated the same as a domestic partnership registered in [Washington State].” Wash. Rev. Code § 26.60.090. As the claimant and NH had the same rights as registered domestic partners in Washington State, including the right for the surviving partner to inherit intestate from the other, they were in a spousal relationship for purposes of entitlement to widow’s benefits. 20 C.F.R. § 404.345.

Moreover, the claimant satisfies the Act’s requirement that a widow was the insured individual’s spouse for at least 9 months before the death of the insured individual. 42 U.S.C. §§ 402(e), 402(f); 20 C.F.R. § 404.335. Here, the claimant and NH were in a valid California registered domestic partnership since July 2009. At the time of the NH’s death in August 2016, she had been the claimant’s domestic partner for more than 7 years, satisfying the 9-month durational requirement of the Act.

CONCLUSION

The claimant and NH, a same-sex couple registered as domestic partners in California but domiciled in Washington State when NH died, are considered spouses for purposes of determining the claimant’s entitlement to widow’s benefits under Title II of the Act.

The number holder (NH) was domiciled in Oregon at the time of death; therefore, the Oregon state law governs. The NH and the claimant registered as same-sex domestic partners in California in 2002 and in 2007, the couple moved to Oregon. They did not register their domestic partnership in Oregon, but they were married in April 2015 in Oregon. Although the marriage between the claimant and the NH was likely valid under Oregon state law, the marriage did not satisfy the nine-month durational requirement for entitlement to widow’s benefits. According to the California state law, registered domestic partners in California had the same rights, protections, benefits, responsibilities, obligations, and duties as are granted to and imposed upon spouses. The Oregon domestic partnership law is substantially similar to California and also provides for spousal inheritance rights and Oregon’s policy would not prevent recognition of this validly formed California domestic partnership. Because the claimant can inherit as the NH’s spouse under Oregon law, the agency should consider the claimant and the NH as married for benefits purposes. Accordingly, the claimant is entitled to survivor’s benefits on the NH’s record.

QUESTION PRESENTED

G~ (the claimant) and F~ (the number holder (NH)) registered as same-sex domestic partners in California, and they later married in Oregon. The NH passed away while the couple was domiciled in Oregon. Is the claimant entitled to widow’s benefits on the NH’s record under Title II of the Social Security Act (the Act)?

BRIEF ANSWER

Yes, the agency would consider the claimant as the NH’s spouse based upon the California domestic partnership. Here, where the domestic partnership laws of Oregon and California are substantially similar, and both provide for spousal inheritance rights, Oregon policy would not prevent recognition of this validly formed California domestic partnership. Thus, because the claimant can inherit as the NH’s spouse under Oregon law, the agency should consider the claimant and the NH as married for benefits purposes when the NH passed away while domiciled in Oregon.

SUMMARY OF FACTS

The NH and claimant registered as same-sex domestic partners in California on October XX, 2002. There is no evidence that their domestic partnership was not validly formed. The couple moved to Oregon in January 2007, and they did not register their domestic partnership in Oregon. On April XX, 2015, the NH and the claimant married in Oregon. The NH died in Oregon on May XX, 2015. On June XX, 2015, the claimant applied for widow’s benefits on the NH’s record.

DISCUSSION

I. Applicable Law

A. Federal Law

An individual must establish a marital relationship with the NH, of at least nine months duration, in order to be entitled to widow’s or widower’s benefits. 42 U.S.C. § 402(e) & (f); 20 C.F.R. § 404.335. The agency determines whether a non-marital legal relationship qualifies as a marital relationship using the intestacy laws of the state of the NH’s domicile when he or she died. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. If, under state law, a claimant could inherit a spouse’s share of the NH’s personal property if the NH died without leaving a will, the agency treats the couple’s non-marital legal relationship as a marital relationship for purposes of determining entitlement to benefits. 20 C.F.R. § 404.345. In this case, the NH was domiciled in Oregon at the time of death; therefore, Oregon state law governs.

B. Oregon Law

In May 2014, the United States District Court for the District of Oregon declared unconstitutional Oregon’s previous ban on in-state same-sex marriages and non-recognition of out-of-state same-sex marriages. Geiger v. Kitzhaber, 994 F. Supp. 2d 1128 (D. Or. 2014). Thus, as of the date of the court’s order, Oregon began issuing same-sex marriage licenses and recognizing out-of-state same-sex marriages.

At the time of the NH’s death, Oregon state law recognized same-sex domestic partnerships. Rev. Stat. § 106.340. Domestic partnerships were allowed except when:

(1) either party had another partner or spouse living at the time of the domestic partnership;

(2) the parties were first cousins or any nearer kin to each other; or

(3) either party was incapable of consenting to the contract for want of age or understanding.

Or. Rev. Stat. § 106.315. Oregon law granted couples registered as domestic partners the same survivor benefits as married couples. Or. Rev. Stat. § 106.340(1).

Thus, Oregon registered domestic partnerships qualified as marital relationships for SSA benefits purposes. POMS GN 00210.004D.

There is no explicit provision in Oregon law either recognizing or rejecting out-of-state registered domestic partnerships. However, as a general principle of Oregon law, “a marriage which is recognized as valid in the state where it was performed will be recognized in Oregon.” Garrett v. Chapman, 252 Or. 361, 364, 449 P. 2d 856 (1969). There is a potential exception to that rule “where the policy of this state dictates a different result than would be reached by the state where the marriage was performed.” Id. Thus, when considering the validity of marriages formed in other states, the question is whether any Oregon policy would prevent recognition of the marriage.

C. California Law

Beginning January 2000 (and at all times relevant here), California permitted any two same-sex individuals to enter a registered domestic partnership if (1) neither person had an ongoing marriage or domestic partnership with someone else; (2) the individuals were not related by blood; (3) both individuals were at least 18 years of age; and (4) both individuals were capable of consenting to the domestic partnership. Cal. Fam. Code § 297(b); see POMS GN 00210.004(D)(5).

As in Oregon, registered domestic partners in California had the same rights, protections, benefits, responsibilities, obligations, and duties “as are granted to and imposed upon spouses.” Cal. Fam. Code § 297.5(a). An individual in a registered domestic partnership had a right to inherit intestate from the other partner the same as a surviving spouse. Cal. Fam. Code § 297.5(c).

II. Analysis

Although the marriage between the claimant and the NH in April 2015 was likely valid under Oregon state law, the marriage did not satisfy the nine-month durational requirement for entitlement to widow’s benefits.

However, applying the Garrett analysis to these facts, the State of Oregon would recognize the claimant and the NH’s out-of-state domestic partnership. The domestic partnership was registered in California, which, like Oregon, prohibits domestic partnerships between partners who are married to another, related by blood, under 18 years of age, or incompetent. Cal. Fam. Code § 297(b); Or. Rev. Stat. § 106.315. California’s domestic partnership requirements and benefits, which are comprehensive, are substantially similar to Oregon’s. Compare Or. Rev. Stat. §§ 106.315 & 106.340, and Cal Fam. Code § 297.5. Therefore, Oregon policy would not prevent recognition of this validly formed California domestic partnership. Because Oregon would recognize this domestic partnership for inheritance purposes, the agency may treat the couple’s relationship as a marital relationship for purposes of determining entitlement to benefits.

CONCLUSION

Under Title II of the Act, the agency could deem the claimant and NH as married based on their California registered domestic partnership because, under Oregon law, such relationship allows for intestate inheritance rights as a spouse. Accordingly, the claimant is entitled to survivor’s benefits on the NH’s record.

The deceased wage earner (DWE) died while domiciled in California; therefore, we look to the California law to determine whether the Claimant is the DWE’s widow for purposes of entitlement to widow’s benefits and the LSDP. Under the California law, state-registered domestic partners inherit intestate from each other to the same extent as a married couple. However, California only confers these spouse-like inheritance rights on those couples who register their domestic partnership with the California Secretary of State. Here, the available evidence indicates that the Claimant and the DWE did not register their domestic partnership with the California Secretary of State, rather, only with Los Angeles County. Accordingly, the agency does not deem Claimant to be the DWE’s widow and the Claimant is not entitled to widow’s benefits or the LSDP on the DWE’s record.

QUESTIONS PRESENTED

You asked whether L~ (Claimant) is entitled to widow’s benefits and a lump-sum death payment (LSDP) on the record of the deceased wage earner (DWE), V~, where the couple registered their domestic partnership with the County of Los Angeles, California, on June XX, 1999.

SHORT ANSWER

No. Under California law, state-registered domestic partners inherit intestate from each other to the same extent as a married couple. However, California only confers these spouse-like inheritance rights on those couples who register their domestic partnership with the California Secretary of State. Here, the available evidence indicates that Claimant and the DWE did not register their domestic partnership with the California Secretary of State, rather, only with Los Angeles County. Accordingly, Claimant would not inherit intestate from the DWE to the same extent as a surviving spouse, and she is not entitled to widow’s benefits or the LSDP on the DWE’s record.

SUMMARY OF EVIDENCE

On June XX, 1999, Claimant and the DWE filed a Statement of Domestic Partnership with the County of Los Angeles. On July XX, 1999, Claimant and the DWE participated in a commitment ceremony in Las Vegas, Nevada. On September XX, 2015, the DWE died while domiciled in California. The DWE’s death certificate lists Claimant as her spouse. On November XX, 2015, Claimant filed an application for widow’s benefits and the LSDP on the DWE’s record.

APPLICABLE LAW

Federal Law

To be entitled to widow’s benefits under Title II of the Social Security Act (Act), a claimant must establish that she is the widow of an individual who died fully or currently insured. See Social Security Act §§ 202(e); 216(c); 20 C.F.R. § 404.355. To be entitled to the LSDP under Title II of the Act, a claimant must establish that she is the widow of an individual who died fully or currently insured, and she was living in the same household as the insured at the time of his or her death. See Social Security Act §§ 202(i), 216(c); 20 C.F.R. § 404.390.

Under Section 216(h)(1) of the Act, 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 was domiciled at the time of his 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). However, even if the claimant was not validly married to the insured individual, the agency will deem the claimant to be the insured individual’s widow or widower if, under the laws of the State where the insured individual was domiciled at the time of his or her death, the claimant would inherit intestate from the insured as if he or she was the insured’s surviving spouse. Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345 (“The relationship requirement will also be met if under State law you would be able to inherit a wife’s, husband’s, widow’s, or widower’s share of the insured’s personal property if he or she were to die without leaving a will.”); see also Program Operations Manual System (POMS) GN 00210.004 (recognizing that a domestic partnership is a type of non-marital legal relationship that may convey spouse-like inheritance rights).

Here, the DWE died while domiciled in California. Accordingly, we look to California law to determine whether Claimant is the DWE’s widow for purposes of Claimant’s entitlement to widow’s benefits and the LSDP.

California Law

On January 1, 2000, California began providing for the registration of domestic partnerships with the California Secretary of State. See 1999 Cal. Legis. Serv. Ch. 588 (A.B. 26); In re Marriage Cases, 43 Cal. 4th 757, 801, 76 Cal. Rptr. 3d 683 (Cal. 2008); Cal. Fam. Code § 297. This initial legislation afforded domestic partners only limited substantive rights, such as hospital visitation privileges and health coverage under state employee benefit plans. Id.; see also Cal. Health & Safety Code § 1261. However, in 2003, California passed legislation expanding the rights of domestic partners. See In re Marriage Cases, 43 Cal. 4th at 802; 2003 Cal. Legis. Serv. Ch. 421 (A.B. 205). The California Domestic Partner Rights and Responsibilities Act amended the California Family Code to give domestic partners all of the same rights, protections, and benefits shared by spouses. See id.; Cal. Fam. Code § 297.5. Among the benefits extended was the right of a surviving domestic partner to inherit intestate to the same extent as a surviving spouse. Cal. Fam. Code § 297.5(c).

However, in order to obtain the rights provided under the California Domestic Partner Rights and Responsibilities Act, the couple must register their domestic partnership with the California Secretary of State. See Cal. Fam. Code 298.5(a); Velez v. Smith, 142 Cal. App. 4th 1154, 1165, 48 Cal. Rptr. 3d 642, 650 (Cal. Ct. App. 2006) (holding that registration of the domestic partnership with the California Secretary of State is a prerequisite to pursuing domestic partnership rights under California law). In Velez, the California Court of Appeals held that a declaration of domestic partnership filed and registered with the City and County of San Francisco, but not with the State of California, did not confer the benefits provided to domestic partners under State law. Velez, 142 Cal. App. 4th at 1167. “Persons desiring to become domestic partners must file a Declaration of Domestic Partnership with the Secretary of State.” Id. at 1165-66 (“The Legislature had granted domestic partners ‘legal recognition comparable to marriage both procedurally and in terms of the substantive rights and obligations granted to and imposed upon the partners,’ but only to ‘couples who meet the requirements of establishing a domestic partnership under the Domestic Partner Act and who have registered under that law.’”) (emphasis in original) (citing Koebke v. Bernardo Heights Country Club, 36 Cal. 4th 824, 845 (Cal. 2005)).

ANALYSIS

Claimant and the DWE did not register their domestic partnership with the State of California. The available evidence indicates that Claimant and the DWE only filed a declaration of domestic partnership with the County of Los Angeles.

Because Claimant and the DWE failed to register their domestic partnership with the California Secretary of State, they did not receive the rights conferred on state-registered domestic partners under California law. See Velez, 142 Cal. App. 4th at 1165-67; Cal. Fam. Code 298.5(a); California Secretary of State: Domestic Partners Registry; Frequently Asked Questions, available at: http://www.sos.ca.gov/registries/domestic-partners-registry/frequently-asked-questions/#question7 (“In order to have the rights provided by State law to registered domestic partnerships, you must be registered with California's statewide registry;” registration of the domestic partnership with the local municipality will not suffice).^[7]

CONCLUSION

Under California law, Claimant would not inherit intestate from the DWE to the same extent as a surviving spouse. Claimant and the DWE did not register their domestic partnership with the California Secretary of State, and thus, they do not have the same rights and benefits as spouses under California law. Accordingly, the agency does not deem Claimant to be the DWE’s widow and Claimant is not entitled to widow’s benefits or the LSDP on the DWE’s record.

The question in this case is whether California was the number holder’s (NH) domicile state at the time of his death in November 2006. The NH and claimant completed a declaration of domestic partnership in April 2002 and filed it with California’s Secretary of State in May 2002. The couple jointly owned residences in Florida, Michigan, and California. In 2006, the couple lived in California until April and then stayed in Michigan for the rest of the year due to the NH’s illness. When the NH passed away in Michigan, the death certificate identified the Michigan home as his current residence. However, the claimant reported that he and the NH spent the majority of each year (between six and eight months) in California and they split the rest of their time living in Florida and Michigan. The residence in Michigan is a condominium the couple purchased after selling their previous house because they frequently travelled back to visit, but there is no indication that the couple intended to make Michigan their permanent home again. The claimant also reported that he and the NH considered California to be their home at the time of the NH’s death and when the couple travelled, they did not rent out their California property. In support of California residency, the claimant submitted evidence of a home mortgage, a garage-door service receipt, and a renewal of a fire insurance policy from 2006 for their property.

In April 2015, the claimant filed for surviving spouse benefits on the NH’s account. At the time of the NH’s death, Florida and Michigan did not recognize non-marital legal relationships that conveyed spousal inheritance rights. While the couple had multiple residences, an individual can only have one domicile at a time. Although the NH was physically present in Michigan at the time of his death, the claimant maintains that he and the NH considered California to be their primary home. Based on the claimant’s statements and the evidence submitted, we conclude California was the NH’s domicile at the time of his death. Therefore, applying California law, the claimant would be able to inherit intestate as the NH’s surviving domestic partner and would be considered NH’s surviving spouse for benefit purposes on the NH’s record.

QUESTIONS PRESENTED

You asked whether J~ (Claimant) is entitled to surviving spouse benefits on the record of R~ (Number Holder or NH), where the couple entered into a same-sex domestic partnership in California. Specifically, you asked whether California was the NH’s domicile state at the time of his death.

SHORT ANSWER

Yes. NH was domiciled in California at the time of his death. Under California law, Claimant would inherit intestate from NH to the same extent as a surviving spouse; thus, for entitlement purposes, the agency deems Claimant to be NH’s spouse under section 216(h)(1)(A)(ii) of the Social Security Act (Act).

SUMMARY OF EVIDENCE

NH last worked in Michigan in 1998, and Claimant reported that he began living with NH in San Francisco, California, in June 1998. A property search conducted through the San Francisco Office of Assessor-Recorder’s website confirms that the couple acquired their San Francisco property in June 1998, and maintained that property through the date of NH’s death.

On April XX, 2002, NH and Claimant completed a declaration of domestic partnership, which they filed with California’s Secretary of State on May XX, 2002.

Claimant reported that the couple jointly owned residences in K~; Florida, Birmingham, Michigan; and San Francisco, California. Claimant said the couple previously lived in a house in Michigan before moving with their possessions to California and making it their primary residence. When they moved to California, Claimant and NH sold their house in Michigan. A few years later, they bought a condominium in Birmingham, Michigan because they frequently travelled back to visit.

Claimant reported that, in 2005, he and NH lived in California from May to mid-June, in Michigan from mid-June until the end of August, and in California again until early October. Thereafter, from October 2005 until February 2006, the couple spent time in Key West because a hurricane destroyed their condominium there. The couple then lived in California until the beginning of April 2006 and stayed in Michigan for the rest of the year due to NH’s illness. They did not rent out their California property when they travelled.

On November XX, 2006, NH passed away in Birmingham, Michigan. His Michigan death certificate identifies the Michigan home as his current residence at the time of his death.

Prior to his death, NH received Title II disability benefits via direct deposit. His Master Beneficiary Record (MBR) indicates an address for him in Birmingham, Michigan, provided on September XX, 2002. His September 2002 MBR also shows prior addresses in San Francisco, California, and K~, Florida.

Claimant reported that he and NH spent the majority of each year, usually between six and eight months, in California, and that they split the rest of their time living in Florida and Michigan. Claimant reported that NH may have voted and filed his taxes in Florida, but he also said they owned property and paid taxes in all three states. It is unclear what type of taxes NH paid in which state. Claimant reported that he and NH considered San Francisco to be their home at the time of NH’s death. In support of California residency, Claimant submitted evidence of a home mortgage, a garage-door service receipt, and a renewal of a fire insurance policy from 2006 for their San Francisco property.

On April XX, 2015, Claimant filed for surviving spouse benefits on NH’s account.

APPLICABLE LAW

Federal Law

To be entitled to surviving spouse’s insurance benefits under Title II of the Act, a claimant must establish that he or she is the widow or widower of an individual who died fully insured. See Social Security Act §§ 202(e), 216(c); 20 C.F.R. § 404.335. Under Section 216(h)(1) of the Act, 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 was domiciled at the time of his 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). However, even if the claimant was not validly married to the insured individual, the agency will deem the claimant to be the insured individual’s widow or widower if, under the laws of the State where the insured individual was domiciled at the time of his death, the claimant would inherit intestate from the insured as if he or she was the insured’s surviving spouse. Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345 (“The relationship requirement will also be met if under State law you would be able to inherit a wife’s, husband’s, widow’s, or widower’s share of the insured’s personal property if he or she were to die without leaving a will.”); Program Operations Manual System (POMS) GN 00210.004 (the agency recognizes that a domestic partnership is a type of non-marital legal relationship that may convey spouse-like inheritance rights).

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 Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (“a person's domicile is her permanent home, where she resides with the intention to remain or to which she intends to return”). Consistent with the 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.

State Law

California Family Code section 297.5 provides that registered domestic partners have the same rights, protections, benefits, responsibilities, obligations, and duties “as are granted to and imposed upon spouses.” Cal. Fam. Code § 297.5(a). Moreover, each domestic partner has a right to inherit intestate from the other domestic partner to the same extent as a surviving spouse. Cal. Fam. Code § 297.5(c); see also POMS GN 00210.004.D (California state-registered domestic partnerships convey spousal inheritance rights and the agency will treat the domestic partners as if they were married).

At the time of NH’s death, Florida and Michigan did not recognize non-marital legal relationships that conveyed spousal inheritance rights. See POMS GN 00210.004.D. Thus, the question of whether California was NH’s domicile state is dispositive for determining Claimant’s entitlement to surviving spouse benefits.

ANALYSIS

Claimant reported that he and NH had residences in California, Michigan, and Florida. While the couple had multiple residences, an individual can only have one domicile at a time. See POMS GN 00305.001.B.2. Here, although NH was physically present in Michigan at the time of his death, Claimant maintains that he and NH considered California to be their primary home. Based on Claimant’s statements and the evidence submitted, we conclude that California was NH’s domicile at the time of his death.

Claimant stated that he and NH previously lived in a house in Michigan. However, the couple sold their house in Michigan and moved with their possessions to California, intending to make California their primary residence. Thus, although NH previously lived in Michigan, it appears he changed his domicile state to California in 1998. See POMS GN 00305.001.A.2.c (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). The couple later bought a condominium in Michigan because they visited there frequently, but there is no indication that the couple intended to make Michigan their permanent home again.

Claimant reported that the couple usually spent between six to eight months in California with the remainder of time spent on a temporary basis in their other residences. Claimant and NH owned a residence in California, which they appear to have maintained, and the evidence suggests that they paid taxes there as well. Claimant and NH also registered their domestic partnership in California. They did not rent out their California property when they were away, demonstrating their intent to maintain the San Francisco residence as their permanent home, with the intent to return whenever they travelled away. As Claimant reported, he and NH intended and considered California to be their home. Cumulatively, this evidence is sufficient to meet the agency’s evidentiary requirements and the applicable legal standards for domicile. See POMS GN 00301.040 (agency should “obtain a clarifying statement from the claimant or another person” or obtain additional evidence to resolve conflicts in the evidence); POMS GN 00301.010.B.5 (acceptable evidence for establishing benefit entitlement or eligibility includes signed statements or affidavits).

In 2006, NH passed away in Michigan, and his death certificate identified Michigan as his current residence, which is consistent with Claimant’s statements. The year that NH passed away, the couple lived in Florida from January until February, in California until April, and subsequently in Michigan where NH passed away. Claimant reported that the couple stayed in their condominium in Michigan for the remainder of the year due to NH’s illness, not because they intended to make Michigan their permanent home.

With respect to Florida, Claimant believed NH might have voted and filed his taxes in Florida. However, Claimant also reported that the couple paid taxes in all three states. Nonetheless, NH did not reside in Florida at the time of his death, and there is no evidence that NH intended to make Florida his permanent home.

Based on the available evidence, we conclude that California was NH’s state of domicile at the time of his death. Therefore, applying California law, Claimant would be able to inherit intestate as NH’s surviving domestic partner and would be considered NH’s surviving spouse under section 216(h)(1)(a)(ii) of the Act.

CONCLUSION

From the available evidence, we conclude that California was NH’s state of domicile at the time of his death. Under California law, Claimant would inherit intestate from NH to the same extent as a surviving spouse. Accordingly, Claimant is entitled to surviving spouse benefits on NH’s record.

Under California law, both parties to a domestic partnership must be alive when they submit their declaration of domestic partnership to the Secretary of State. If one of the parties dies after signing the declaration of domestic partnership, but prior to submitting the form, the domestic partnership is invalid. In this situation, the NH died in January 2013. Even though the claimant and the NH signed the declaration of domestic partnership form, there is no evidence that the claimant submitted the form for filing before the NH’s death. Because the NH died before the Secretary of State received the declaration of domestic partnership, the NH did not have the capacity to consent to the domestic partnership at the time of filing, even though a certificate of registered domestic partnership was issued to the claimant certifying that the claimant and NH were united in domestic partnership 5 days after the NH’s death. Based on the available evidence, the claimant did not enter into a valid California domestic partnership with the number holder (NH) prior to his death. Therefore, he is not entitled to a lump-sum death payment on the NH’s record.

QUESTION

You asked whether Claimant is entitled to a Lump Sum Death Payment as the surviving domestic partner of NH, where NH died after signing a declaration of domestic partnership but prior to filing the declaration with the California Secretary of State.

SHORT ANSWER

No. Under California law, both parties to a domestic partnership must be alive when they submit their declaration of domestic partnership to the Secretary of State. If one of the parties dies after signing the declaration of domestic partnership, but prior to submitting the form to the Secretary of State, the domestic partnership is invalid. Thus, Claimant is not entitled to a Lump Sum Death Payment based on NH’s account.

SUMMARY OF EVIDENCE

On January XX, 2013, Claimant and NH signed a declaration of domestic partnership form (Form NP/SF DP-1). A California notary public witnessed and notarized their signatures. Thereafter, according to Claimant, they mailed the form to the California Secretary of State on January XX, 2013, consistent with the instructions on the Secretary of State’s website. See California Secretary of State: Domestic Partnership Forms, available at http://www.sos.ca.gov/dpregistry/forms.htm.

On January XX, 2013, NH died domiciled in California.

On January XX, 2013, the California Secretary of State issued a certificate of registered domestic partnership, certifying that Claimant and NH were united in domestic partnership on January XX, 2013.

APPLICABLE LAW

Federal Law

Upon the death of an insured individual, the agency may pay a lump-sum death payment to the widow or widower of the deceased if the widow or widower was living in the same household as the deceased at the time the death occurred. Social Security Act § 202(i)(1); 20 C.F.R. § 404.390; Program Operations Manual System (POMS) RS 00210.001, GN 00210.600.

Section 216(h) of the Social Security Act provides that the agency will find a claimant to be the wife, husband, widow or widower of an insured individual if the courts of the State in which such insured individual resided at the time of his 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). However, even if claimant was not married to the insured individual, the agency will nevertheless deem the claimant to be the insured individual’s wife, husband, widow or widower if, under the laws of the State, the claimant would inherit intestate from the insured individual the same as if he or she was the surviving spouse. Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345 (“The relationship requirement will also be met if under State law you would be able to inherit a wife’s, husband’s, widow’s, or widower’s share of the insured’s personal property if he or she were to die without leaving a will.”). The agency recognizes that a California domestic partnership established on or after January 1, 2000, is a type of non-marital relationship that confers inheritance rights. See POMS GN 00210.004.

California Law

Pursuant to California Family Code section 297.5(c), a surviving registered domestic partner, following the death of the other partner, shall have the same rights, protections, and benefits as are granted to a widow or widower. Cal. Fam. Code § 297.5(c). In order to establish a domestic partnership, the intended partners must file a declaration of domestic partnership with the Secretary of State, and, at the time of filing, must meet the following requirements:

Neither partner can be married or a member of another domestic partnership;

The partners cannot be related by blood in a way that would prevent them from being married;

Both partners must be at least 18 years old, except as allowed by court order;

Both partners must be (A) members of the same sex, or (B) one or both of the partners must be over 62 years of age or meet the old-age insurance criteria of Titles II or XVI of the Act; and

Both partners must be capable of consenting to the domestic partnership.

Cal. Fam. Code § 297(b).

ANALYSIS

After his death, NH no longer had capacity to consent to a domestic partnership. See Cal. Fam. Code § 297(b)(5).^[8] Accordingly, the dispositive issue is whether NH entered into a valid domestic partnership with Claimant before his death. While the facts of this inquiry are unique, they are not novel in California.

In Burnham v. California Public Employees’ Retirement System, the California Court of Appeals ruled on a very similar matter. 208 Cal. App. 4th 1576, 146 Cal. Rptr. 3d 607 (Cal. App. Ct. 2012). Specifically, that case involved a couple (Burnham and Honeyman) who completed a notarized declaration of domestic partnership prior to, and on the same day, as Burnham’s death. Id. at 1579. Two days later, Honeyman presented the declaration to the California Secretary of State, and the clerk filed it. Id. Thereafter, Honeyman filed for State pension survivor’s benefits, but the State denied her claim. Id. A trial court found that Honeymoon and Burnham were not domestic partners at the time of Burnham’s death, and the Court of Appeals affirmed the trial court’s decision. Id.

In so affirming, the California Court of Appeals analyzed the statutory requirements of establishing a domestic partnership. Id. at 1583. The Court noted that, in order to establish a domestic partnership, two people must file a declaration of domestic partnership with the Secretary of State and, at the time of filing, both people must be capable of consenting to the partnership. Id. (citing Cal. Fam. Code § 297.5(b)). Thus, according to the Court, “it follows [that] those two people must be alive at the time of filing.” Id.

Moreover, the Court held that merely signing and notarizing the declaration of domestic partnership did not equate to “filing” for purposes of section 297.5. Id. at 1585. “Obtaining a license or a notarized declaration is an essential but ineffective step by itself to make a marriage or domestic partnership valid.” Id. Rather, “[i]t is the act of relinquishing control of the declaration to the clerk that is the operative act because it symbolizes a decision by both parties to the union to go through with the domestic partnership. It is the point at which the parties can no longer change their minds about their decision.” Id. at 1584.

In the same way that a couple must solemnize a marriage by physically presenting themselves and declaring that they take each other as husband and wife, parties to a domestic partnership must jointly relinquish control of their declaration to the Secretary of State. Id. “What these acts have in common is they symbolize the irrevocable decision to go through with the union.” Id. Thus, for purposes of section 297.5, “filing” is “the point in the process at which the parties can no longer change their minds about their decision to form a union.” Id. The Court concluded that, because Honeyman did not present the declaration of domestic partnership for filing before Burnham’s death, the domestic partnership was never valid. Id.

Similarly, here, there is no evidence that Claimant submitted the declaration of domestic partnership to the California Secretary of State for filing before NH’s death. Although Claimant and NH signed and notarized the declaration of domestic partnership before NH’s death, this act alone was insufficient to establish a valid domestic partnership. See id. Rather, there must be evidence that prior to NH’s death, the couple relinquished control of the declaration and could no longer change their minds about entering the domestic partnership. See id.

Moreover, merely mailing the declaration of domestic partnership did not equate to “filing” the form for purposes of section 297.5. In Burnham, the Court declined to decide this issue. See id. at 1583 n.4 (“We need not decide what constitutes the day of filing when a declaration is mailed to the Secretary of State because that is not what happened here.”) However, pursuant to information we received from the California Secretary of State, a declaration of domestic partnership is deemed “filed” on the date that office receives and reviews it.^[9] The Secretary of State uses this receipt date to determine the date the state recognizes on the certificate as the date partners were united in domestic partnership (presumably where all requirements are met).

Here, the certificate of domestic partnership provides that Claimant and NH were united in domestic partnership on January XX, 2013, five days after NH’s death. See Cal. Health & Safety Code § 103550 (presumption that information contained in vital records are accurate). Because NH died before the Secretary of State received the declaration of domestic partnership, NH did not have capacity to consent to the domestic partnership at the time of “filing.” Thus, their domestic partnership was not valid.

CONCLUSION

Based on the available evidence, Claimant did not enter into a valid California domestic partnership with NH prior to NH’s death. Merely completing the declaration of domestic partnership form did not constitute “filing” the form under California law. Accordingly, Claimant did not qualify as a surviving domestic partner entitled to inherit intestate, and he is not eligible for a Lump Sum Death Payment on NH’s account.