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 inMexico, 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.