Question
You asked whether C~ (Claimant) is the widower of W~, the number holder (NH), under
Florida law based on their Broward County NMLR for purposes of determining Claimant’s
entitlement to the LSDP and WIB on NH’s earnings record.
Answer
No. We believe the courts of Florida would find that Claimant is not NH’s widower
under Florida law. Accordingly, we believe the agency is justified in finding Claimant
is not entitled to the LSDP or WIB on NH’s earnings record.
Background
In September 2018, Claimant applied for the LSDP and all other insurance benefits
for which he was eligible under Title II of the Social Security Act (Act) on NH’s
earnings record. Claimant indicated in his application that he and NH were married
in Florida on April xx, 2013, and the marriage ended when NH died on August xx 2018,
and they were living together in Florida at the time of NH’s death.
Claimant submitted a copy of a declaration of domestic partnership and a separate
certificate of registration indicating that they filed the declaration of domestic
partnership under the Broward County Domestic Partnership Act on April xx, 2013, showing
that the registration was recorded in the official records of Broward County, Florida.
NH’s death certificate shows that NH was domiciled in Broward County, Florida, when
he died on August xx, 2018. NH’s death certificate states that NH was never married
and identifies Claimant as the informant and NH’s domestic partner.
Discussion
A claimant may be eligible for the LSDP and WIB if the claimant is the widower of
an individual who died fully or currently insured. See Act §§ 202(f)(1), 202(i); 20
C.F.R. §§ 404.335(a), 404.390, 404.391 (2018).* A claimant may qualify as the widower
of an insured individual if the courts of the state where the insured was domiciled
when he died would find that the claimant and insured were validly married when the
insured died or would find that the claimant had the same status as a widower with
respect to taking the insured individual’s personal property through intestacy. See
Act § 216(h)(1)(A); 20 C.F.R. §§ 404.335(a), 404.345; POMS GN 00305.001A.2.a; POMS RS 00207.001A.1.a. Where a claimant alleges an NMLR as the basis for entitlement, such as a domestic
partnership, the agency must determine whether the state would recognize the NMLR
as a marriage or whether the claimant could inherit a spouse’s share of the insured’s
personal property. See Act § 216(h)(1)(A); 20 C.F.R. § 404.345; POMS GN 00210.004A. Thus, for the agency to recognize parties to a NMLR as married: (1) the NMLR must
be valid in the state where it was established; and (2) the NMLR must qualify as a
martial relationship or allow the claimant to inherit a spouse’s share of the insured
individual’s personal property if the insured individual died without a will under
the laws of the state of the insured individual’s domicile when he died. See POMS
GN 00210.004C.*All references to the Code of Federal Regulations are to the 2018 edition.
NH’s death certificate shows that NH was domiciled in Broward County, Florida, when
he died, and documents related to Claimant and NH’s domestic partnership show that
they entered into their domestic partnership in Florida. Therefore, we look to Florida
law to determine if Claimant and NH’s domestic partnership was valid, and if it was
valid, whether their domestic partnership qualified as a marital relationship or would
allow Claimant to inherit a spouse’s share of NH’s personal property if he had died
without a will.
Claimant and NH’s declaration of domestic partnership and a separate document from
Broward County, Florida, show that they registered as domestic partners pursuant to
the Broward County Domestic Partnership Act (DPA) on April XX, 2013. Broward County
enacted that DPA on January 26, 1999. See Broward County, Fla., Code of Ordinances, Pt. II - Code of Ordinances, Chapter 16½
- Human Rights, Art. VIII - Domestic Partnership Act, https://www.broward.org/ Purchasing/Documents/DomesticPartnership.pdf. In Lowe v. Broward County, 766 So.
2d 1199 (Fla. Dist. Ct. App. 2000), rev. den. 789 So. 2d 346 (Fla. 2001), the Florida
District Court of Appeal for the Fourth District considered the validity of the Broward
County DPA. See Lowe, 766 So. 2d at 1201-03. The court held that Florida’s constitution and statutes did
not prohibit counties or other local governments from enacting laws allowing domestic
partnerships. See id. at 1203-11. Thus, Claimant and NH’s domestic partnership was valid under Florida
law.
* All references to the Code of Federal Regulations are to the 2018 edition.
However, Florida does not consider a Broward County domestic partnership to be a marriage
or a relationship that would allow Claimant to inherit a spousal share of NH’s personal
property. In Lowe , the court held that the DPA “does not legislate within that domestic
relations zone that is reserved for the state” because the DPA “does not curtail any
existing rights incident to a legal marriage, nor does it alter the shape of the marital
relationship recognized by Florida law.” 766 So. 2d at 1205. The court also noted
that the DPA did not “address the panoply of statutory rights and obligations exclusive
to the traditional marriage relationship,” such as a surviving spouse’s right to a
share of an intestate estate. Id. In addition, the court held that the DPA “does not
reflect a legislative value judgment that elevates a non-traditional personal relationship
to equal status with the marital relationship created under” Florida law, and the
DPA “does not create a legal relationship that, because of the interest of the state,
gives rise to rights and obligations that survive the termination of the relationship.”
Id. at 1206.
The court in Lowe agreed with the trial court “that the DPA’s extension of limited employment benefits
does not create a ‘marriage-like relationship’ . . . .” Id. at 1208. The court further
noted that “[t]he DPA is not limited to persons of the same sex. The [DPA] provides
benefits to domestic partners. It does not create that plethora of rights and obligations
that accompany a traditional marriage.” Id. Furthermore, the court held that the DPA
did not violate Florida’s prohibition against common-law marriage because “a domestic
partnership created by the [DPA] does not rise to the level of a traditional marital
relationship.” Id. at 1211.
Under Florida intestacy law, a surviving spouse is entitled to a share of the decedent’s
estate. See Fla. Stat. Ann. § 732.102 (West 2018). Florida courts typically base the
determination of whether an individual is a surviving spouse on the validity of the
marriage. See, e.g., In re Estate of Perez, 470 So. 2d 48, 50 (Fla. Dist. Ct. App.
1985) (reviewing validity of marriage to determine lawful spouse in intestate matter);
In re Kant’s Estate, 265 So. 2d 524, 526 (Fla. Dist. Ct. App. 1972) (same). Because
Claimant and NH’s domestic partnership did not grant any of the rights conferred on
married individuals under Florida law, Claimant is not NH’s surviving spouse under
Florida law and he could not inherit a spouse’s share of NH’s personal property under
Florida’s intestacy law.
Conclusion
We believe the Florida courts would find that Claimant’s and NH’s Broward County domestic
partnership did not qualify Claimant as NH’s widower under Florida law or allow Claimant
to inherit as NH’s widower under Florida interstate succession law. Accordingly, we
believe the agency cannot find that Claimant is the NH’s widower or deemed widower
for purposes of determining Claimant’s entitlement to WIB on NH’s earnings record.